Friday, March 4, 2011




Under the common law, as also the provisions contained in Section 14(1)(b) of the Specific Relief Act, a master was entitled to terminate the services of an erring employee at his sweet will.  The dismissed employee could have sued his master only for damages and not for his reinstatement in service.  It is only for the purpose of grant of damages, a declaration was required to be made that the termination of the service was illegal.  Having regard to the said legal position, the doctrine of condonation of misconduct evolved, in terms whereof, it was impermissible for the master to allow an employee to continue in service for a long time despite his knowledge that he had committed a misconduct and then to turn round and contend that his services should have been terminated on the ground that he was guilty of misconduct.

Even if the inquiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed.  That does not mean that the findings arrived at were essentially the correct findings.

The Hon'Ble Courts have repeatedly held that the factual finding of the Disciplinary Authority after holding a detailed  inquiry and after going through elaborate evidence are not assailable in the courts unless the brech of pricniples of natural justice or the violation of any rules or any material irregularity on the face of record.

Please read the following judgments and try to catch the mind of the Apex Court of the Country, which is the final authority for interpretation --for -- the LAW OF THE LAND :

                   IN THE SUPREME COURT OF INDIA
                    CIVIL APPEAL NO. 5683 OF 2008
                    [Arising out of SLP(C) No.2757/07]

K. M. Mishra                                                 ... Appellant

Central Bank of India & Ors.                        ... Respondents

1.    Leave granted.
2.    A dispute over promotion to the post of Chief Manager, Rajbhasha in Senior Manager Grade, Scale IV in the Central Bank of India has brought this matter to this Court. Respondent No.5 was granted promotion to the post on 19 May 1997 in preference to the Appellant. He challenged the promotion given to the respondent before the Bombay High Court in Writ Petition No. 1412 of 1997. The High Court dismissed the writ petition by judgment and order dated 24 November 2006. This appeal is filed against the judgment of the High Court.

3. It would be useful to state at the beginning certain basic facts that are admitted or are, at any rate, undeniable as that would keep us from straying into issues that have no relevance to the dispute giving rise to this appeal.

The promotion from Middle Management Grade (Scale III) to Senior Management Grade (Scale IV) is made on the principle of merit-cum- seniority from among officers who have completed five years' satisfactory service in MMG scale III. The Bank's Promotion Policy for Officers in clause 3.3 provides as follows.

"3.3. Promotion from Middle Management Grade  Scale III to Senior   Management Grade Scale IV – For  promotion from Middle Management Grade Scale III to   Senior Management Grade Scale IV, an officer should have completed a minimum of 5 years of satisfactory   service in Middle  Management Grade Scale III."

The selection from among the eligible candidates, i.e., officers who have completed the qualifying service of five years in MMG Scale III is made on the basis of an interview and annual Performance Appraisal Ratings for three preceding years. For the promotion in question, the appellant and respondent no. 5, both of whom had completed five years' qualifying service in MMG Scale III were assessed in the same way. In the interview both the appellant and respondent No.5 were awarded 30 marks.
In the annual PARs, however, though the appellant had `Very Good', same as respondent no.5 for the year 1994-95, for the other two years 1995-96 and 1996-97 he had only `Good' against `Very Good' obtained by respondent no.5. The remark `Very Good' carried 32 marks and `Good' 24 marks. Thus the Performance Appraisal Ratings of the appellant averaged out to 26.6 and that of respondent No.5 to 32. In this way, out of 100 the appellant had 56.6 marks as against 62.0 secured by respondent No.5. Respondent No.5 was accordingly selected and promoted to the post.

4.    The appellant after unsuccessfully challenging the promotion granted to respondent no.5 before the Bombay High Court has brought the matter to this Court.

5. From the judgment coming under appeal, it appears that before the High Court the promotion granted to respondent No.5 was assailed on one of the grounds that respondent No.5 did not possess the requisite educational qualifications. It was stated before the High Court that there were three options in regard to educational qualifications and respondent No.5 came in the third option that required a second class Master's degree in Economics/Commerce in Hindi medium with English as an elective subject at Bachelor's degree level.  It was submitted before the HighCourt that the respondent no.5  did not fulfill the requirement of educational qualifications and he was given the promotion.

The High Court considered the submission and rejected it holding that respondent No.5 duly fulfilled the academic qualifications as well. Apparently, however, the High Court was not informed and it was completely overlooked that the educational qualifications referred to by the appellant pertained to the entry level post of Hindi Officer in Scale I.

6.    Since the issue of the educational qualifications came under discussion in the High Court judgment, before this Court it has been vastly expanded and turned into practically the main plank of attack to the promotion given to respondent no.5. A number of affidavits have been filed both by the appellant and respondent No.5 bringing on record his Master's degree, the Bachelor level marks-sheets and courses of studies etc. of Agra University (from where respondent No.5 took his Graduation and Master's degrees)
 On the basis of the affidavits and the enclosed documents, the appellant seeks to contend before the Court that though satisfying the first part of the educational criteria of having a Master's degree in Commerce in Hindi medium, respondent no.5 did not have English as an elective subject at the Bachelor degree level. Mr. A. K. Srivastava, learned senior advocate, appearing for the appellant set forth before the Court in great detail the various documents obtained from the Agra University contending that the claim of respondent no. 5 that he had elective English at the Bachelor's level was not borne out from the University documents. Needless to say that on behalf of respondent No.5 it is equally strenuously argued that he fully satisfied the educational criteria and he had English as one of the subjects at the Graduate level.

7.    In our considered view the matter of educational qualification of respondent No.5 is a non-issue insofar as his promotion to SMG Scale IV is concerned. As noted above, the educational qualifications referred to by the appellant pertain to the entry level post of Hindi Officer Scale I. The appellant was promoted as Hindi Officer Class I in 1976 and respondent No.5 came to join that post in 1978. Later on both of them were promoted to scales II and III and it was after about 20 years of entry into service that both of them came up for consideration for promotion to SMG Scale IV.
Even while the selection process was going on the appellant did not raise this objection before the Bank management. The objection was taken for the first time before the High Court and at that stage too it was not made clear that the educational qualifications were not relevant for the promotion in question but that pertained only to the entry level post. At this stage, therefore, we are completely disinclined to go into the question of the educational qualification of respondent No.5, more so since it is not at all conclusive or clear that respondent No.5 did not have English as one of the elective subjects at the Graduation level.

8. This takes us to consider the second objection raised on behalf of the appellant with regard to being given `Good' as his Performance Appraisal Ratings for the years 1995-96 and 1996-97. It is stated by the appellant that on the retirement of Mr. R. V. Tiwari, Assistant General Manager (Hindi Department) on 1 February 1993, he was asked to take over as Head of the Hindi Department on officiating basis; at that time he was in MMG Scale III. In that position, from 1 June 1993 he was asked to report directly to the General Manager. On the retirement of Mr. Arjun Bhaya, General Manager, Hindi Cell, one Mr. S.C. Unhelkar, Chief Manager (System and Procedure) from the main stream of the Bank was posted as Chief Manager, Rajbhasha on 1 April, 1996. The appellant objected to the posting of Mr. Unhelkar as he was from the main stream and his posting in Rajbhasha was in violation of the Government guidelines. Similar objections were also raised by the Central Bank Officers' Association. It is further stated on behalf of the appellant that for the years 1995-96 and 1996-97 his Performance Appraisal Ratings were given by Mr. Unhelkar and he gave him the rating `Good' for those two years. In fairness to the appellant it must be noted that he does not allege any mala fide on the part of Mr. Unhelkar but Mr. Srivastava argued that the appellant's performance appraisal for the two years in question by Mr. Unhelkar was in breach of the guidelines provided under the Performance Appraisal System of Officers of the Central Bank of India. 

9.  From the guidelines it appears that appraisals are to be made annually on calendar year basis, i.e., for the period from January to December. It is a two tier process in which the officer concerned makes his own appraisal and submits it to his Reporting Officer. The remarks given by the Reporting Officer are finally reviewed by the Reviewing Officer. Clause 3 of the Guidelines provides that in case the concerned officer does not submit his self-appraisal within one month of receiving the format, the Reporting Authority would have the right to submit his report concerning the officer to Reviewing Authority.
Clause 6 of the Guidelines provides that if a Reporting/Reviewing Authority is to retire on a specified date, care should be taken to ensure, as far as practicable, that appraisals of the officers working under him are taken before his retirement. Much reliance was placed on behalf of the appellant on Clause 4 of the Guidelines that provides as follows:

"It should be ensured that the Appraisee has worked  under both Reporting and Reviewing Authority for a  minimum period of six months before he is appraised by  them. If it is not so, the appraisal form of the officer  concerned should be sent to the previous  Reporting/Reviewing Authority under whom he has  worked for six months or more."  (emphasis added)  under whom he has  worked for six months or more."  (emphasis added)

10. Mr. Srivastava submitted that in both the calendar years 1995-96 and 1996-97 the appellant had worked under Mr. Unhelkar for less than six months and hence, he was not competent or authorised to give any appraisal ratings to the appellant. The appellant had worked under Mr. Unhelkar from 9 September, 1996 to 9 March, 1997; in other words in the year 1996 he worked under Mr. Unhelkar for about four months and in 1997 for only three months.   Mr. Srivastava  also  placed  before us  the   appellant's
performance appraisals during his service tenure. It appears that right from 1984 to 1994 his ratings were `Excellent'. In 1995 he was given `Very Good'. In 1996 the Reporting Authority gave him `Good' and the Reviewing Authority `Very Good' but the overall rating came down to `Good'. In 1997 both the Reporting and Reviewing Authorities gave him `Good'. In 1998 the rating once again picked up to `Very Good'.

11.   The position in this regard is clarified in the counter affidavit filed by the Bank. In the Bank's counter affidavit it is stated that in the year 1994- 95, the appellant duly submitted his self-appraisal before Mr. Bhaya who was the General Manager at that time. But in 1995-96, the appellant did not submit his self-appraisal in time and though in terms of Clause 3 of the Guidelines Mr. Bhaya could give his appraisal rating concerning the appellant he did not do so till his retirement.  The appellant submitted his self appraisal for two
 years 1995-96 and 1996-97 after Mr.Bhaya had already retired from service and thus it fell upon Mr. Unhelkar to write the appellant's Performance Appraisal Ratings for the two years. It is true that  in year 1996 Mr. Unhelkar was the appellant's Reporting Officer for less than six months but in the circumstances, for which the appellant himself was responsible to a great extent, his work appraisal could only be made by Mr. Unhelkar. It is further pointed out that in both years 1995-96 and 1996- 97 Mr. Tiwary was the Reviewing Authority under whom the appellant had worked for a very long period and against whom he did not have any objection.

12.   Mr. L.N. Rao, senior counsel appearing for the Bank, submitted that though in the year 1996 Mr. Unhelkar was the appellant's Reporting Officer for less than six months, by the time the appraisal rating for the year 1997 was written the appellant had already worked under him for more than six months. The Performance Appraisal Rating of the appellant given for the year 1996-97 was thus beyond any objection. He further submitted that even if the Performance Appraisal Rating for the year 1995-96 is excluded for both the candidates the position would still remain the same as the appellant would have only a `Good' remark as against the `Very Good' remark for respondent No.5 for the year 1996.-1997.

13.   On a careful consideration of the rival contentions we find no substance or merit in the appellant's objections regarding his Performance Appraisal Ratings for the three years in question.

14.   Mr. Srivastava then submitted that in the preceding years the appellant had `Excellent' ratings and in the year 1995 he had `Very Good'.The rating `Good' for the year 1996-97 was thus a climb down and it was incumbent upon the authorities to intimate the appellant about his ratings for the two years in question. Since no intimation was given to the appellant the ratings for those two years should not have been taken into account and instead the ratings for the earlier years should have been considered for the purpose of promotion.

15. We are unable to accept the submission. In Satya Narain Shukla vs. Union of India & Ors., 2006 (9) SCC 69 (81) it was held and observed as follows :

"The appellant also argued that the remarks made in the  ACR were not communicated to him. It was also urged  by the appellant that this Court should direct the  authorities to streamline the whole procedure so that even remarks like "good" or "very good" made in ACRs should be made compulsorily communicable to the  officers concerned so that an officer may not lose his   chance of empanelment at a subsequent point of his   service. In our view, it is not our function to issue such directions. It is for the Government to consider how to streamline the procedure for selection. We can only examine if the procedure for selection as adopted by the Government in unconstitutional or otherwise illegal or  vitiated by arbitrariness and mala fides."

16.   On hearing counsel for the parties and on a careful consideration of the materials placed on record we find no merit in the appeal and it is accordingly dismissed. In the facts and circumstances of the case there shall be no order as to costs.

Appeal (civil)  2385 of 2008

Mavji C Lakum

Central Bank of India

DATE OF JUDGMENT: 02/04/2008

S.B. Sinha & V.S. Sirpurkar


(Arising out of SLP (Civil) No.6495 of 2005)


1.       Leave granted.

2. The appellant herein challenges Division Bench judgment of the High Court of Gujarat dismissing his Writ Appeal.  The said Writ Appeal  was filed against the orders of the learned Single Judge of that court  whereby the Writ Petition filed by the Respondent-bank was allowed  setting aside the order passed by the Industrial Tribunal.  The Industrial  Tribunal had answered the Reference in favour of the appellant and had set aside the punishment of discharge as also the other punishments and restricted the said punishment to stoppage of one year's increment. 

3.  Following facts will highlight the controversy involved. 
4. Appellant Mavji C. Lakum had joined the services of the Respondent-bank as a Peon on 1.9.1951.  He was promoted as a Head Peon in the year 1963.  While in service, two charge-sheets came to be served upon the appellant and an inquiry was held against him and he came to be discharged from the service by an order dated 22.5.1984.  This order was challenged by the appellant by filing a Regular Suit No.99 of 1984 in the Court of Civil Judge (Junior Division), Anjar, Kutch-Bhuj.  The said suit was dismissed.  In the appeal, though the District Court directed reinstatement but denied the back-wages.   The appellate court also permitted the Respondent-bank to hold fresh enquiry.  The appellate judgment was challenged before the High Court by way of Second Appeal by the appellant where he was awarded 75% back-wages from the date of filing the suit. 

 5. As the order of reinstatement became final, the appellant was reinstated.  However, since the permission was granted by the District Court to the respondent-bank to start inquiry afresh, that inquiry was initiated in accordance with law and in that inquiry the appellant was found guilty of few charges whereby he was given the punishment of discharge on two charges. He was given the punishment of stopping his increments
in respect of other charges for which he was found guilty.  A show cause notice dated 7.2.1991 was issued to the appellant calling upon him to show cause why the punishment of dismissal should not be imposed upon him.  A reply was submitted by the appellant dated 18.3.1991 wherein he contended that looking into the nature of the charges, the punishment of dismissal was very harsh.  He also offered explanation regarding the charges and the findings.  However, the Disciplinary Authority, after
considering the reply inflicted a composite punishment of discharge.  The appellant thereafter filed a Departmental Appeal which was dismissed.  He, therefore, raised a dispute with regard to punishment of his discharge and on that basis a Reference came to be made to Industrial Tribunal (Central), Rajkot which was registered as ITC No.1 of 1993. 

6.   The Industrial Tribunal firstly came to the conclusion that the Departmental Inquiry was just and proper.  However, in so far as the merits of the allegations were concerned, the Tribunal came to the conclusion that there was no evidence supporting major charges, though there was some misconduct on the part of the appellant.  Again the Tribunal specifically held that the proved misconduct was not so serious as to invite
the extreme punishment of discharge.  Reference was thus partly allowed and the order of discharge was set aside.  The Tribunal imposed the punishment of withholding one increment with future effect.  In the meanwhile the appellant retired from the services of the respondent with effect from 3rd September, 1994.
7. The respondent challenged the Award passed by the Industrial Tribunal by way of a Writ Petition which came to be allowed by the learned Single Judge who concluded his judgment as follows:
"Considering the fact that respondent has been working with the petitioner bank right from the year 1951 and he had put in 30 years of service before he was discharged from the service and that now he has retired and reached at the age of 70 years, it is recommended that the petitioner may consider his case for payment of back wages for the period in question at the rate of 50%.  This is merely a recommendation and not
direction and it is for the bank to take the decision in this behalf.  With this observation, this petition stands allowed.  Rule made absolute with no order as to costs."

8. The judgment of the learned Single Judge was appealed against by way of a Writ Appeal and as has been stated earlier, the Writ Appeal was also dismissed, necessitating the present appeal before us.
9. Learned counsel appearing on behalf of the appellant contended that the order of learned Single Judge as also the confirming order in the Letters Patent Appeal by the Division Bench are patently erroneous.  As regards the order of the learned Single Judge, the learned counsel contended that the learned Judge had totally traveled beyond his jurisdiction and went on to interfere with the findings of fact on re-appreciation of the evidence which was not permissible.  According to the learned counsel, it was impermissible for the learned Judge to disturb the findings recorded by Tribunal. According to the learned counsel the Tribunal had a complete jurisdiction under Section 11-A of the Industrial Disputes Act, 1947 not only to consider the factor of quantum of
punishment but also to re-appreciate the findings reached during the disciplinary inquiry.  Learned counsel  has taken us through the order of the Tribunal and has pointed out that the Tribunal had very carefully appreciated the evidence and had come to the conclusion that the misconduct proved against the appellant was insignificant and not so serious so as to invite the extreme punishment of discharge.  According to the learned counsel, once the Tribunal had exercised its jurisdiction under Section 11-A of the Industrial Disputes Act, there was no question of interference much less after re-appreciating the findings given by the Tribunal.
10.     As regards the appellate order, the learned counsel criticized that the Division Bench did not apply its mind and erroneously dismissed the appeal treating it to be not maintainable.
11.     As against this, however, the learned counsel appearing on behalf of the Respondent-bank supported the order of the learned Single Judge and contended that since that order was passed under Article 227 of the Constitution of India, the appeal itself was not maintainable.  Learned counsel also urged that on merits also the order of the learned Single Judge was absolutely correct. 
12.     At the outset we shall consider the contention as to whether the Letters Patent Appeal was maintainable against the order of the learned Single Judge.  It was contended by the counsel for the respondent-bank that the appeal was not maintainable since the learned Single Judge had exercised his jurisdiction under Article 227 of the Constitution of India and, therefore, there was no question of Letters Patent Appeal being maintainable against the same.  We, therefore, went through the Special Civil Application, a copy of which is the part of the paperbook.  The said writ petition clearly mentions on the very first page that the writ petition was being filed under Article 226 of the Constitution of India.  Again para 10 of the writ petition mentions as under:
"Being aggrieved by the order passed by the Industrial Tribunal, the petitioner begs to approach this Hon'ble court under Article 226 of the Constitution of India challenging the award on the following amongst other grounds."

Ground (iv) on the same page says:
"That the order passed by the Tribunal is arbitrary, unreasonable, unjust and perverse."

Even prayer clause  in para 15 is as under:

"That by appropriate writ, direction and order, the impugned order of Industrial Tribunal (Central) Rajkot at Annexure B be quashed and/or set aside."

All this suggests that the writ petition was not only under Article 227 of the Constitution of India but there is a specific mention of Article 226.  In a reported decision of this Court in Sushilabai Laxminarayan Mudliyar & Ors. V. Nihalchand Waghajibhai Shaha and others [(1993) Supp. 1
SCC 11] a similar question fell for consideration.  In para 4 of the said judgment this Court observed:
"The Full Bench of the Bombay High Court wrongly understood the above Umaji Kesho Meshram case.  In Umaji case it was clearly held that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution of India and the party chooses to file his application under both these articles in fairness of justice to party and in order not to deprive him of valuable right of appeal the court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226.  Rule 18 of the Bombay High Court Appellate Side Rules read with clause 15 of the Letters Patent provides for appeal to the Division Bench of the High Court from a judgment of the learned Single Judge passed on a writ petition under Article 226 of the Constitution.  In the present case the Division Bench was clearly wrong in holding that the appeal was not maintainable against the order of the learned Single Judge.  In these circumstances we set aside the impugned order of the Division Bench and direct that the Letters Patent Appeal filed against the judgment of the learned Single Judge would not be heard and decided on merits."

These observations were made by this Court after taking into consideration the observations made in Umaji Keshao Meshram & Ors. V. Radhikabai, Widow of Anandrao Banapurkar & Anr. [1986 (Supp) SCC 401].  In the present matter apart from the fact that the petition is labeled under Article 226 of the Constitution of India, it is clear that the grounds raised in the petition suggest that the petition is not only under Article 227 but also under Article 226 of the Constitution.  It is to be seen that in the grounds raised against the order of the Tribunal, it is specifically suggested that the
order passed by the Tribunal was arbitrary, unreasonable, unjust and perverse.  The further complaint made against the Tribunal's order pertain to failure on the part of the Tribunal to appreciate certain facts and eventualities thereby complaining non application of mind on the part of the Tribunal.  Complaint has also been made against the approach of the Tribunal and it is suggested that the said approach was perverse.  After reading the writ petition we are convinced that the contentions raised and the facts stated in the petition justify the respondent herein to file an application both under Articles 226 and 227 of the Constitution of India. 

13.          Learned counsel, however, pointed out that the learned Judge at the end of his judgment had given certain directions which were in the nature of the directions given under Article 227 of the Constitution of India.  We do not agree with this contention.  In the first place the learned Judge himself has clearly stated that his suggestion to the bank to award 50% of the back-wages, in view of the long service of the appellant, was merely a recommendation and not a direction and that it was for the bank to take the
decision in this  behalf.  Therefore, this is not a case where any direction as such is issued under Article 227 of the Constitution.  The recommendation made by the learned Judge, as has been stated in the judgment itself, cannot amount to a direction made under Article 227 of the Constitution of India.  It is to be remembered that such directions are not  made to the parties, the directions contemplated under Article 227 are to the concerned authorities against whose order the writ petition is filed.  In
this behalf we must further point out that in Lokmat Newspapers Pvt. Ltd. V. Shankar Prasad [(1999) 6 SCC 275] this Court explained the situation as to whether the writ petition should be treated to be under Article 226 or under Article 227 of the Constitution of India.  That was the case where the Labour Court passed an order in Revision under the provisions of Section 28 of the Maharashtra (Recognition of Trade Unions and Prevention of Unfair Labour Practices) Act, 1971.  This order was confirmed by the Industrial Tribunal under Section 44 of the said Act where both the courts held that the retrenchment of the workman did not amount to any unfair labour practice on the part of the appellant.  These orders were challenged by the workman by filing the writ petition under Article 226 and 227 of the Constitution before the High Court.  The learned Single Judge dismissed the said writ petition but the order of the learned Single Judges itself showed that he was considering the writ petition of the workman which was moved before him invoking the High Court's jurisdiction under Articles 226 and 227 of the Constitution of India.  In that writ petition the workman
had requested the High Court to call for the records and proceedings of the Revision Petition and after perusal thereof to be further pleased to quash and set aside the said order of the Labour Court.  It was averred in the writ petition that the authorities below, while interpreting various provisions of the Maharashtra Act as also the Industrial Disputes Act and the rules framed thereunder had totally lost sight of the object and purpose of these provisions and had put an interpretation alien to the industrial jurisprudence and has thus committed serious error of law apparent on the face of the record which resulted in a serious miscarriage of justice and also in failure to exercise the jurisdiction vested in the courts below under the provisions of the Maharashtra Act.  It was further averred that the orders of the courts below had resulted in infraction of the fundamental rights of the workman. 
14.     When we see the present petition, the situation is no different.  What was averred by the respondent in its writ petition was in the same tone and it was clearly averred that the Tribunal had ignored the principles of industrial jurisprudence and that had resulted in miscarriage of justice.  In para 16 of the reported judgment, the court observed:
"It is, therefore, obvious that the writ petition invoking jurisdiction of the High Court both under Articles 226 and 227 of the Constitution had tried to make out a case for the High Court's interference seeking issuance of an appropriate writ of certiorari under Article 226 of the Constitution of India.  Basic averments for invoking such a jurisdiction were already pleaded in the writ petition for the High Court's consideration. 
It is true, as submitted by learned counsel for the appellant, that the order of the learned Single Judge nowhere stated that the Court was considering the writ petition under Article 226 of the Constitution of India.  It is equally true that the learned Single Judge dismissed the writ petition by observing that the courts below had appreciated the contentions and rejected the complaint.  But the said observation of the learned Single
Judge did not necessarily mean that the learned Judge was not inclined to interfere under Article 227 of the Constitution of India only.  The said observation equally supports the
conclusion that the learned Judge as not inclined to interfere under Articles 226 and 227.  As seen earlier, he was considering the aforesaid writ petition moved under Article
226, as well as Article 227 of the Constitution of India.  Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the
learned Single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the writ petition of the respondent.."

This Court has further relied upon the decision in the case of Umaji Keshao Meshram's case (supra).  The situation is no different in the present case.  The respondent had raised the contentions regarding the order of the Tribunal in the very same manner.  Though the learned Judge observed that he was acting only under Article 227 of the Constitution of India, it cannot be said that the writ petition was disposed of only under
Article 227 of the Constitution.  The writ petition was such as would fall also under Article 226 of the Constitution which label was already attached to the writ petition.  Similar relief was also sought for by praying for an appropriate writ, order or direction for quashing the Industrial Tribunal's order.  We are, therefore, convinced that the law laid down in Lokmat's case applies on all fours.  In the same para 16 this Court proceeds to observe:
"It was open to the respondent to invoke the jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India.  Once such a jurisdiction was invoked and when his writ petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 227 of the Constitution of India. This conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his judgment, as seen earlier.  Consequently, it could not be said that clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of the learned Single Judge."

Similar observations regarding Articles 226 and 227 of the Constitution are to be found in the subsequent decision in Surya Dev Rai v. Ram Chander Rai & Ors. [(2003) 6 SCC 675] where the court has followed the law laid down in Umaji Keshao Meshram's case (supra) as also in Lokmat's case (supra).

15.  We are, therefore, convinced that the Division Bench erred in treating the matter falling only under Article 227 of the Constitution of India.
16.  We would have ordinarily remanded the matter to the Division Bench for consideration on merits.  However, we would desist from doing that in view of the fact that this whole controversy has started right from 1984 and 24 years have so far been lost.  The appellant, in this case, was discharged in the year 1984 and since then he is fighting for his rights.  True it is that he has been paid his back-wages in part, however, we are convinced that the Tribunal's order setting aside his order of punishment of
discharge was a correct order and the learned Single Judge erred in setting aside that order. 
17.  When we see the Tribunal's Award, it is clear that firstly the Tribunal came to the conclusion that the inquiry was fair and proper.  Thereafter in para 7, the Tribunal has considered the arguments on behalf of the bank to the effect that once the inquiry has been held to be legal and proper, no interference can be made as regards the punishment.  It is to be noted that the first charge against the appellant was rough and rude behaviour with client Gulabchand and company's partner Harenderbhai Shah, while the second charge was also regarding the rude behaviour with the higher
officers of the bank and disobedience with the work entrusted; the third charge was that he was instructed to remain present on the bank's account closing day, he had gone away; the fourth charge was regarding the breach of bank's rules pertaining to leave; the fifth charge was with regard to frequently leaving the place during office hours without
permission while the sixth charge was regarding the illegally  making trunk calls on the bank's phone without permission and the seventh charge was incurring excessive debts from outside.  It is already seen that charges 4 and 6 were held not to be proved.  It was pointed out before the Tribunal on behalf of the appellant that for Charge Nos.1 and 3, the minor punishments of censure, etc., and stopping of two increments were imposed.  Thus it was only for the two charges, namely, Charge Nos.2 and 5 that the punishment of discharge was given to him.  In respect of rest of the charges it was merely a punishment of stopping of increments.  It was pointed out by the workman and rightly accepted by the Tribunal that for long 40 years of his service there was not a single allegation against the appellant.  It was also considered by the Tribunal that he had not only properly worked for 30-31 years but has also got promotion of Head Peon
during this period.
18. The Tribunal then took stock of the evidence of Harendra Shah with whom the appellant allegedly misbehaved.  The Tribunal ultimately chose to record that the appellant could not have been found guilty of misbehaviour.  The Tribunal also took stock of the evidence of one Shri Desai and came to the conclusion that he did not even know the duties of the appellant as a Head Peon and that there was no record available and further according to this witness there was no record available of the outgoing trunk calls.  The Tribunal also noted the fact that there was no past record of habitual misconduct on the part of the appellant and, therefore, the Tribunal came to the conclusion that there was no sufficient evidence regarding habitual misuse of the telephones.  The Tribunal also noted the evidence of Peon H.K. Pandya who had said that the delinquent conduct was good with him and he was properly discharging his duties.  The Tribunal has also referred to the fact that Shri H.K. Pandya has given his signature on the complaint against the appellant not even knowing about the document on which he was putting his signature and that he has given the signature just because it was asked from him.
 The Tribunal also noted the evidence of H.N. Shethia, Clerk and recorded a finding that his evidence was not believable.  The Tribunal has further noted that Shri Sethia used to visit Shri Jadeja with whom the appellant had strained relations.  The Tribunal further took stock of evidence of one K.B. Mehta
who was unable to tell as to whether any action was taken against the appellant from 1962 to 1980 and that the conduct of delinquent was good in the bank premises.  The evidence of other witnesses, namely, Shri Vadhera and Shri J.A. Shah was considered by the Tribunal and the Tribunal ultimately recorded that there was no record available with the bank regarding the past history of the delinquent or about his misbehaviour
or any complaint made by any of the staff members.  The Tribunal then records:

"On overall examination of the examination-in-chief and the cross-examination made during the whole departmental inquiry, it appears that the bank's staff did not like the delinquent's conduct, whereas the delinquent was under an impression that he is discharging his main duties and he has not to do any other work.
This is during the period from 1982 only." ".it appears that there is no sufficient record or evidence
against the delinquent so as to impose punishment of discharge on the workman.  Therefore, the punishment of discharge is liable to be set aside. 
Now an overall appreciation, it appears that due to some sort of bitterness between the workman and the staff members, the workman has committed some misconduct.  In my opinion it would be just, proper and in the interest of justice of punishment of withholding the increment with future effect is imposed upon the delinquent and I, therefore, pass the following order."All this suggests that the Tribunal had considered everything in great
19. In our opinion under Section 11-A of the Industrial Disputes Act the Tribunal was quite justified in using its discretion.  The scope of Section 11-A has been explained by this Court from time to time in Life Insurance Corporation of India v. R. Dhandapani [(2006) 13 SCC 613; Mahindra Ltd. V. N.B. Narawade [(2005) 3 SCC 331] and M.P. Electricity Board v. Jagdish Chandra Sharma [(2005) 3 SCC 401]. Lastly, this Court has held that in L and T Komatsu Ltd. V. N. Uadayakumar [(2008) 1 SCC 224]
that assaulting or giving abuses to the superior would  justify the dismissal. 

We have carefully examined the facts in all the above cases and find that the appellant's case nowhere comes near the one described in all the above four cases.  After all the Tribunal has to judge on the basis of the proved misbehaviour.  In this case we have already recorded that the Tribunal was firstly correct in holding that the misbehaviour was not wholly proved and whatever misconduct was proved, did not deserve the extreme punishment of discharge.

20. On this backdrop when we see unusually long judgment of the learned Single Judge, it comes out that the learned Single Judge held firstly that the Tribunal had exceeded its powers vested in it under the provisions of Section 11-A of the Industrial Disputes Act.  The learned Judge, as regards, Section 11-A, after quoting the same, observed:
"Though the Tribunal was equipped with the power to come to its own conclusion whether in a given case the imposition of punishment of discharge or dismissal from the service is justified.  It is for that purpose that the Tribunal is authorized to go into the evidence that has been adduced before the Inquiry Officer in details and find out whether the punishment of discharge or dismissal is commensurate with the nature of
charges proved against the delinquent."

So far the finding of the learned Single Judge appears to be correct. However, the whole thrust of the judgment has changed merely because the Industrial Tribunal had found the inquiry to be fair and proper.  The learned Judge seems to be of the opinion that if the inquiry is held to be fair and proper, then the Industrial Tribunal cannot go into the question of evidence or the quantum of punishment.  We are afraid that is not the correct law.  Even if the inqiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed.  That does not mean that the findings arrived at were essentially the correct findings.  If the Industrial Tribunal comes to the conclusion that the findings could not be supported on the basis of the evidence given or further comes to the conclusion that the punishment given is shockingly disproportionate, the Industrial Tribunal would still be justified in re-appreciating the
evidence and/or interfering with the quantum of punishment.  There can be no dispute that power under Section 11-A has to be exercised judiciously and the interference is possible only when the Tribunal is not satisfied with the findings and further concludes that punishment imposed by the Management is highly disproportionate to the degree of guilt of the workman concerned.  Besides, the Tribunal has to give reasons as to why
it is not satisfied either with the findings or with the quantum of punishment and that such reason should not be fanciful or whimsical but there should be good reasons.  In our opinion the reasons given by the Tribunal were correct and the treatment given by the Tribunal to the evidence was perfectly justified.  The Tribunal committed no error in observing that for good long 30 years there was no complaint against the work of the
appellant and that such a complaint suddenly surfaced only in the year 1982.  The Tribunal was justified in appreciating the fact that the charges were not only trivial and were not so serious as to entail the extreme punishment of discharge.  Here was the typical example where the evidence was of a most general nature and the charges were also not such as would have invited the extreme punishment.  It was not as if the appellant had abused or had done any physical altercation with his  superiors or colleagues.  What was complained was of his absence on some days and his argumentative nature.  Though the learned Judge had discussed all the principles regarding the exercise of powers under Section 11-A of the Industrial Disputes Act as also the doctrine of proportionality and the Wednesbury's principles, we are afraid the learned Judge has not applied all these principles properly to the present case.  The learned Judge has quoted extensively from the celebrated decision of M/s.Firestone Tyre & Rubber Co. of India P. Ltd. V. The Management [AIR 1973 SC 1227], however, the learned Judges seems to have ignored the observations made in para 32 of that decision where it is observed that:
"The words "in the course of adjudication proceeds, the Tribunal is satisfied that the order of discharge or dismissal was not justified" clearly indicate that the Tribunal is now clothed with the power of re-appraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman.  What was originally a plausible conclusion that could be drawn by an employer from the evidence,  has now given place to a satisfaction being arrived  at by the Tribunal that the finding of misconduct is correct..
The Tribunal is at liberty to consider not only whether the finding of misconduct recorded by an employer is correct but also to differ from the said finding if a proper case is made out"

We are surprised at the following observations of the learned Judge in para 7.1:
"Nowhere during the course of the judgment the Tribunal appears to have followed the aforesaid guidelines or the Wednesbury test.  When it was re-appreciating evidence and
on the strength of it, was reaching to different conclusions and ultimately it has substituted the punishment, it was incumbent upon it to follow aforesaid guidelines.  It was only upon finding that the decision of the authority was illegal or that it was based on material not relevant or relevant material was not taken into consideration or that it was so unreasonable, that no prudent man could have reached to such decision or that it was disproportionate to the nature of the guilt held established so as to shock the judicial conscience, the Tribunal could have substituted the penalty.  The entire text of award of the Tribunal does not indicate this."

We are unable to agree with these observations. 

21.  On the other hand the Tribunal, in our opinion has correctly appreciated the evidence and has also correctly substituted the punishment.  In whole of the judgment, the learned Single Judge has not referred to any of the factual findings recorded by the Tribunal.  In our opinion the judgment of the learned Single Judge was wholly incorrect in so far as it dubbed the Tribunal's judgment as wrong.  We approve of the judgment of the Tribunal and set aside the judgment of the learned Single Judge.
22. For the above reasons we are of the opinion that the Writ Petition filed by the respondent and ultimately confirmed by the appellate judgment was incorrectly allowed.  We dismiss the writ petition and restore the Award of the Tribunal.
23. In view of the above the appeal is allowed.  Under the circumstances we deem it fit to inflict the cost of Rs.30,000/- against the Respondent-bank.

Appeal (civil)  2672 of 2003

Y.P. Sarabhai

Union Bank of India & Anr.

DATE OF JUDGMENT: 22/05/2006

Dr. AR. Lakshmanan & Lokeshwar Singh Panta

Dr. AR. Lakshmanan, J.

 We have heard Mr. V. Sudeer, learned Counsel for the appellant and Mr. L. Nageswar Rao, learned Senior Counsel assisted by Mr. O.P. Gaggar, Advocate for the respondents. 

The appellant was appointed as a security officer of the respondent Bank in 1980 and was working in middle Management Cadre (Grade-III) as Manager. Security in 1998
when he was dismissed from the services of the respondent Bank for alleged violation of Regulation 13 of the Union Bank of India Officer Employee (Conduct) Regulations, 1976.  In the charge sheet, it was alleged that he was not reporting for his duties since 3.6.1997.  It was further stated that the appellant's services were transferred to Chennai but the appellant did not carry out his transfer orders to Chennai and was remaining absent without sanction  of leave.  Regulation 13(1) requires that "no  officer/employee should absent himself in case of sickness or accident without submitting a proper medical certificate".  The Bank's Staff Circular dated 2.6.1981 also provides that "the  Management is not bound by the certificate produced by the employee and may require him to appear before the Medical Practitioner of Bank's choice for medical examination." 

The Inquiring Authority came to the conclusion that though the appellant was remaining absent on grounds of illness, the real reason was that he was reluctant to carry out his transfer to Chennai. The Disciplinary Authority awarded the punishment of dismissal from the services of the Bank concurring with the above observation of the Inquiring Authority.  The Disciplinary Authority further held the appellant guilty of the following
a)   Contravention of Regulation 13 of the Union Bank of
India Officer Employees" (Conduct) Regulations, 1976
b)  Failure to discharge his duties with devotion and diligence
c)   Acting in a manner unbecoming of a Bank officer.

The Appellate Authority in dismissing the appellant's appeal held:
a)  that it is the conduct of the petitioner "taking undue advantage of his normal sickness to avoid transfer to the extent possible", which was "not genuine". b)   that "his  sickness" was not such where he could "not  attend his normal office duties".          The High Court held that the appellant was adamant in not carrying out the transfer order and tried his best to avoid transfer until he finally failed upto this Court in challenging his transfer from Mumbai to Chennai".  The finding of the High Court was challenged before us in this appeal on the ground that the same is not based on evidence and is contrary to the opinion/recommendations of the medical experts as regards to the petitioner's illness.

 We have perused the pleadings and the orders impugned in this appeal and also the annexures filed along with the appeal and heared the lengthy arguments advanced by the learned counsel appearing on either side. 

We are of the opinion that the appellant is not entitled to any relief in these proceedings.  The appellant remained absent from his duty for a very long time i.e. from 3.6.1997 to 23.11.1997 without any reasonable cause and justification inspite of the respondent's requests to join the duty and inspite of the respondent's granting him further time to join the duty .  The conduct of the appellant in remaining absent for such a long time shows that he was bent upon to evade the transfer order in any possible manner.  The grounds of ailment were taken as a ruse to avoid transfer which is amply proved by the conduct of the appellant, when he had unauthorisedly remained absent on the ground that he was unable to attend the duty due to illness for such a long but he was quite capable of attending the court proceedings on the various days and was also capable of coming to Delhi to file a petition before this Court.  The concurrent finding of the enquiry is that he has been shifting stands because initially on the very day
of the service of the transfer order he gave a representation mentioning illness of his wife and the studies of his son for the purpose of deferment of the transfer to Chennai from Mumbai.  But in the other representation to other Officer of the Bank, which he has produced to the Bank, he has stated the reason of his illness as an excuse.  Thus, the conduct of the appellant in trotting up all these defenses show that he was trying to
avoid transfer to Chennai through all possible means.  The reason for deferment of transfer given by him before the High Court and this Court in the writ petition and the appeal filed by him against the transfer order was a simple ruse to avoid the transfer.  It has been affirmed by the Court in that proceeding that the transfer was done as per exigencies of the Bank.  The transfer of the appellant was effected to a large city namely
Chennai which as per his own admission has very good medical facilities which are comparable to those in Mumbai.  The service of specialist officers and for that matter all officers in the Bank are transferable on all India basis and they are liable to the posted anywhere in India subject to the personnel and manpower requirement and exigencies of the Bank.    This Court has repeatedly held that the factual finding of the
Disciplinary Authority after holding a detailed enquiry and after going through elaborate evidence are not assailable in the courts unless the brech of pricniples of natural justice or the violation of any rules or any material irregularity on the face of record is alleged and shown.  However, in this case the High Court in the jurisdiction under Artilce 226 of the Constitution of India has again gone into all aspects of the enquiry in detail and has come to the same factual finding as the Disciplinary Authority and the Appellate Authority.  Such concurrent findings by three different Authorities including the High Court should not be disturbed by this Court under Article 136 of the Constitution of India.  We, therefore, have no other option except to dismiss this appeal.  Accordingly, the appeal stands dismissed.

 At the time of argument, Mr. V. Sudeer, the learned  counsel for the appellant invited our attention to the affidavit of undertaking dated 27th July, 2002 filed by the appellant herein.  Inspite of the order of dismissal, the learned counsel has requested this Court to take a lenient view considering peculiar facts and circumstances of the case.  The learned counsel submitted that the appellant is ready to forgo the entire back wages and shall join duty at the place where he is posted and that he be reinstated in service.  He also made an alternative plea that if for any reason the Bank is not willing to consider his request for his reinstatement on sympathetic grounds, the Bank may be advised to pay some lumpsum payment to the appellant.  The matter was heard on 19th May,2006 for this purpose and adjourned to ascertain the views of the Bank and is listed today the 22nd May, 2006.  Mr. L.N. Rao, learned Senior Counsel for the Bank reported that the
Bank is not willing to reinstate the appellant in service in view of deriliction of duty and seriousness of the proved charges, but however is ready and willing to abide by any further direction that may be issued in regard to the above proposal. 

We have considered the submissions made by both sides. Irrespective of order of dismissal of the appeal filed by the appellant, we feel that the request fervently made by the  Counsel for the appellant should be sympathetically considered to meet the ends of justice.  The appellant was dismissed from service on 4.9.1998.  He is without pay for all these years in view of the order of dismissal.  According to the appellant, his wife also died of cancer.  It is settled law that a person who is dismissed from service is entitled to get only the provident fund but no gratuity.  In the instant case, the total amount of provident fund payable to the appellant comes to Rs.3,36,158/- and gratuity comes to Rs.1,49,215/-.  The appellant is liable to pay a sum of Rs.2,60,228/- towards
outstanding dues to the Bank for the various loans availed by him from the Bank.  Therefore, after deducting sum of Rs.2,60,228/- from and out of the total amount of provident fund of Rs.3,36,158/-, the balance comes to Rs.75,930/-.  The appellant has now crossed 58 years of age and getting a new  job at this juncture is also not possible for him.  Considering the totalily of all the peculiar facts and circumstances of this case, we feel that if we direct the Bank to pay a sum of Rs.1,50,000/-, which includes the balance provident fund of Rs.75,930/- after adjusting the loan amount due to the Bank,
that would meet the ends of justice.  We also make it clear that the appellant will have no other claims against the Bank hereafter.   In order to give quietus to this long standing litigation, we direct the Bank to pay to the appellant by Demand Draft a sum of Rs.1,50,000/- towards full and final settlement of all claims between both the parties.  If there is any discrepancy with regard to the amount payable to the appellant by way of provident fund and the loan amount, the appellant is at liberty to approach the Bank for any clarification and if such a letter is received from the appellant, the Bank shall consider the same and do the needful at the earliest.  The appeal shall accordingly stand dismissed.  

Appeal (civil)  7686 of 2004
P.D. Agrawal

State Bank of India & Ors.

DATE OF JUDGMENT: 28/04/2006

S.B. Sinha & P.P. Naolekar


The Appellant herein was working as a Junior Manager, Grade-I in a  Branch office of the 1st Respondent-Bank, herein.  On or about 29.9.1984 he is said to have misbehaved with the Regional Manager of the Bank.  He was placed under suspension.  Disciplinary proceedings were also initiated against him on 26.11.1984.  He was found guilty of the misconduct alleged  against him.  On earlier occasion also, he was found guilty for misbehaviour wherefor, he had been censured.  He was thereafter allowed to join his
duties.  The Appellant, however, despite imposition of the said penalties on  him, started misbehaving with the senior officers again as also with the customers by using abusive language and passing derogatory remarks during the period 8.9.1986 to 27.9.1986.  During the said period, it may be mentioned, he was posted in different branches.  A disciplinary proceeding was started against him.  The charges levelled against him were as under:   

"Katni Market Branch
1. You created an unpleasant scene and atmosphere by using unparliamentary language against the local authorities of the Branch in a calculated attempt to denigrate the said authority, which act of yours damaged/tarnished the image of the Bank.

Churcha Branch
2.  You disobeyed the lawful and reasonable orders of the superiors.  You also crossed the boundaries of decorum and decency.  You have thus acted in a manner unbecoming of an official of the Bank.

3. You disregarded the lawful instructions of the superiors.   

Shahdol Branch

4.(a)   By your acts you have disobeyed the lawful instructions of the superiors.  You also displayed gross negligence in performance of your duties.
  (b)   By your acts you disobeyed the lawful and easonable orders of the Bank.  You also showed insubordination to the superior authorities.  Your  acts are unbecoming of officer of the Bank.
 (c)   By your acts you intentionally showed insubordination to the superior authorities of the Bank.  You thus acted in a manner unbecoming of an official of the Bank.
 (d)  You created a feeling of insecurity amongst the staff members.  You have acted in a manner unbecoming of an official of the Bank.

Jabalpur Regional Office

5. You failed to obey the reasonable and lawful orders of the Bank and behaved in a manner unbecoming of an official of the Bank.

The above charges, if proved, are tantamount to misconduct in contravention of Rules 32(1) and 32(4) and (5) of the State Bank of India (Supervising Staff) Service Rules governing our services."

One Shri R.K. Sharma, Branch Manager, having been abused and threatened to be hit by shoes by the Appellant, lodged two First Information Reports (FIR) against the Appellant pursuant whereto two cases under Section 353 of the Indian Penal Code were initiated in respect of the incidents which took place on 16.10.1986 and 23.10.1986.  He was placed under suspension by an order dated 11.11.1986 by the Disciplinary
Authority stating:

"It has been reported that soon after your reinstatement on 16th August, 1986 on conclusion of major penalty proceedings against you, you again misbehaved with your colleagues, senior officer and also some of the outsiders and used abusive language passing derogatory remarks during your recent stay at different branches viz. Katni Market, Churcha and Shahdol branches.  This has tarnished the image of the bank and
resulted in your arrest by the local police on 16th October, 1986 and thereafter on 23rd October, 1986 under sections 353, 448 and 506 of Indian Penal Code.  The nature and
extent of the misbehaviour indicates that the established authorities of the Bank and certain other functionaries in the Regional Office and engendering indiscipline amongst the staff." He was, however, acquitted of the charges levelled against him in the criminal proceedings by a learned Judicial Magistrate by a judgment dated 7.5.1988, inter alia, on the ground that the same could not be proved beyond reasonable doubt.

The Disciplinary Authority thereafter issued a charge sheet against him for his purported misbehaviour during the period 8.9.1986 to 27.9.1986 to which we have referred to hereinbefore.  An Inquiry Officer was appointed to enquire into the said charges.  Before the said Inquiry Officer several witnesses were examined.  In relation to each of the charges, the witnesses, indisputably, were cross-examined.  The Appellant also entered into defence and several documents on his behalf were exhibited. 

The Inquiry Officer considered all the materials brought on record,ncluding the judgment passed in his favour in the criminal case.  The Appellant was found guilty of all the charges except the charge No.2.  The Disciplinary Authority, however, differed with the findings of the Inquiry Officer as regards the said charge No.2 and recommended for his dismissal from services to the Appointing Authority stating:

"2.   I am in agreement with the findings of the Inquiring Authority in respect of all the
allegation/charges except allegations/charge No.2.  In respect of allegation No.2, on perusal of deposition of Shri K.C. Tiwari (the maker of PEX-3) I find that DEX-1
was written by him under pressure of the charge sheeted official.  Further PEX-4 was written by Shri Tiwari on receipt of the letter of Regional Office (DEX-3). However, nothing has been established during the course of the enquiry that the letter PEX-3 was written under pressure.  Therefore, I am not in agreement with the Inquiring Authority that the letter (PEX-3) was not written of his own volition, and placing reliance on PEX-
3, I hold the allegation and the charge as fully proved.

3. In this connection, I have also perused/examined and considered the past record of the official.  I find that earlier also the official was placed under suspension for similar type of acts of misconduct and was proceeded against for major penalty.  On conclusion of the enquiry he was inflicted upon the penalty of "Censure" by the Disciplinary Authority considering that he suffered mental agony and that the act
was the first riotous act during his service and with a view to give him an opportunity to reform himself.  Despite this, I find that the official has repeated such type of misconduct proving that the earlier decision of the Disciplinary Authority did not have any reformative impact upon the official.

4. The ingredients of the proved/partly proved allegations/charges in the instant case are so grave that the official does not deserve to be continued in the Bank's service.  I, therefore, recommend that the penalty of "Removal from Bank's service" as provided for in Rule No.49(g) of the State Bank of India (Supervising Staff) Service Rules may be inflicted upon the official treating his period of suspension as such.  Accordingly,
he will not be eligible for any back wages for the period of his suspension.  The order shall be effective from the date of its receipt by the official."
It is not disputed that the Disciplinary Authority, prior to making the said recommendations, did not assign any reason for expressing his difference of opinion with the Inquiry Officer as regard the said charge No.2, nor served the delinquent officer with a show cause nor he was served with a copy of the enquiry report.  The Appointing Authority, however, relying on or on the basis of the said recommendations of the Disciplinary Authority, as also upon consideration of the materials on record, while forwarding a copy of the report of the Inquiry Officer, imposed upon the Appellant a punishment of removal from service stating:

"I have perused the records of the enquiry in its entirety and concur with the reasonings/findings recorded in the "Note" of the Disciplinary Authority. Accordingly, I am in agreement with the recommendations of the Disciplinary Authority that you do not deserve to be continued in the Bank's service.   I have, therefore, decided to inflict upon you the penalty of "Removal from service" in terms of Rule No.49(g) of the State Bank of India (Supervising Staff Service Rules governing your services in the Bank read with Rule No.50(3)(iii) ibid., which I hereby do.  Further, you will  also not be paid the salary and allowances for the period of your suspension except the subsistence allowance already paid to you, as the period of suspension has been treated as such by me.  The order shall be effective from the date of receipt of this letter by you.  Please note that a copy of this order is being placed in your service file." The Appellant herein, thereafter, preferred an appeal before the Appellate Authority.  As regards the opinion of the Disciplinary Authority, so far as charge No.2 is concerned, he stated: "The enquiring authority held this charge disproved but the disciplinary authority reversed the
findings of E/A and deemed the charge as proved.  The act of disciplinary authority having given weightage to the CSO pressure on BM Churcha requires to be reviewed in the light of the fact that the Regional Manager's say in the matter was not considered the
pressure to whom BM is subordinate but an OJM on deputation to the branch could pressurise the BM Churcha.  The perusal of relative portion of enquiry proceedings will reveal that the entire issue was framed by BM Churcha on instance of the respective Regional Manager.  It is, therefore, requested to your honour to take an independent view in the matter." No plea was raised by the Appellant that he was prejudiced in any
manner either by reason of any delay, which might have taken place in holding the disciplinary proceeding, or by reason of the Disciplinary Authority's dissatisfaction as regards thereto and/or non-grant of an opportunity of hearing to him.  The said appeal, upon consideration of the contentions raised by the Appellant herein, was dismissed by the Appellate Authority by an order dated 16.6.1992 stating: "Discipline and decency will have to be maintained at all costs and breach thereof will have to be severely dealt with.  Further, the official was given an opportunity to reform himself on an earlier occasion but he failed to eschew his defiant attitude.  I am, therefore, in full agreement with the appointing Authority's decision to impose the exemplary punishment of removal from service on Shri Agarwal.  However, to reduce the financial hardships faced by the appellant, I am inclined to consider the period of suspension from 11.11.1986 to 22.7.1990 on duty."
He filed a writ petition questioning the legality of the said order,hich was dismissed.  A Letters Patent Appeal preferred by the Appellant thereagainst was also dismissed by a reasoned order. Mr. P.P. Rao, learned Senior counsel appearing on behalf of the Appellant has raised the following contentions in support of this appeal:  (i)      The penalty of removal from service, imposed upon the Appellant by the Disciplinary Authority, was illegal as prior thereto a copy of the enquiry report was not furnished to him and thus: (a) the Appellant was denied an opportunity to present his case against the findings of the Inquiry Officer; (b) a similar opportunity was denied to him by the
Disciplinary Authority when he differed with the finding of the Inquiry Officer as regard charge No.2;  (ii)      As violation of the principle of natural justice itself causes prejudice, it was not necessary for the Appellant to raise the said contention expressly, as also for the violation of Article 14 of the Constitution of India; (iii)     The High Court committed a manifest error in passing the impugned judgment in so far as it held that the principles of natural justice had been complied with as the Appellant herein got an opportunity of hearing before the Appellate Authority; iv)     The disciplinary proceedings were initiated after delay of about three years from the alleged incidents, on the basis whereof the charges had been framed against him and as such the entire disciplinary proceeding was vitiated; v)     In any event such inaction on the part of the Disciplinary Authority for a long time would amount to condonation of the acts of alleged misconduct; (vi)     The disciplinary proceeding, being mala fide, is violated in law; (vii)    The punishment imposed upon the Appellant was disproportionate to the gravity of the misconduct, for which the Appellant was charged, and, thus, deserve to be set aside by this Court.
Mr. V.A. Bobde, learned Senior counsel appearing on behalf of the Respondents, on the other hand, would contend: (i)      The Appellant did not plead or prove any prejudice having been caused to him before the Appellate Authority in view of the fact that he himself invited it to deal with the matter on merit;

(ii)   It is not a case where delay in initiating the Disciplinary Authority caused any prejudice to the Appellant as: (a) all witnesses were available to prove the charges against him; (b) the witnesses were fully cross-examined; and (c) the Appellant fully defended himself before the Disciplinary Authority.

(iii)     In respect of findings of the Inquiry Officer vis-`-vis the other charges being severable, even if the Appellant was held to be not guilty of commission thereof, the impugned order of punishment would be sustainable. 

(iv)     So far as non-furnishing of copy of the enquiry report is concerned, having regard to the fact that the decision of this Court in Union of India & Ors. vs. Mohd. Ramzan Khan [(1991) 1 SCC 588], was rendered on 20th November, 1990, and it having only a prospective application and the impugned order of punishment having been passed on 20th  July, 1990, in law the Disciplinary Authority was not required to
furnish a copy of the enquiry report to the Appellant;

(v)  Compliance of principles of natural justice not only varies from case to case, in a situation of the present nature, the same would be deemed to have been waived as by reason of non-issuance of a show cause notice upon the Appellant by the Disciplinary Authority, while differing with the findings of the Inquiry Officer on charge No.2, he was not at all prejudiced as he himself .had called upon the Appellate Authority to decide the matter on its own merit and the impugned order may not be interfered with.
(vi)  No case has been made out for interference with the quantum of punishment by this Court having regard to the fact that despite opportunities having been granted to the Appellant to reform himself, he continued to commit similar nature of misconduct, namely, using abusive and unparliamentary language and threatenings to assault the senior officers and others.

The Respondent No.1 is a statutory authority, having been created under the State Bank of India Act, 1955.  The terms and conditions of the employees of the 1st Respondent
herein, thus, are governed by the statutory Rules framed in this behalf including the State Bank of India (Supervisory Staff) Service Rules (the 'Rules', for short).   Rule 49 of the said Rules provides for the mode and manner in which the disciplinary proceedings are required to be initiated.  The said Rules also provide for imposition of minor and major penalties.  In terms of the proviso appended to Rule 50(1)(i), where the Disciplinary Authority is lower in rank than the Appointing Authority in respect of the category of the employees to which he belongs to, no order imposing any of the major penalties can be passed, except by the Appointing Authority or an authority higher than it on the recommendations of the Disciplinary Authority. The pattern of charges against the Appellant, categorically point out to the fact that the Appellant had been misbehaving with the Regional Managers and other officers, as well as the customers not only while he was posted in different branches.

Charge No.2 refers to an incident, which took place on 26.9.1986.The said charge, admittedly, was not proved.  However, it is not disputed that in respect of charge No.1 witnesses were examined on behalf of the 1st Respondent.  They were thoroughly cross-examined by the Appellant.  Documentary evidences were also adduced by the parties.  So far charge .3 is concerned, only one witness was examined on behalf of the 1st Respondent.  The Appellant therein exhibited four documents in support of his case.  The 1st Respondent also exhibited some documents.  Similarly, in relation to each other charge witnesses were examined on behalf of the 1st Respondent; they were cross-examined and documents were exhibited. 

The validity of the disciplinary proceeding and/or justifiability thereof on the ground of delay or otherwise had never been raised by the Appellant before any forum.  It was not his case either before the Appellate Authority or before the High Court that by reason of any delay in initiating the disciplinary proceeding he had been prejudiced in any manner whatsoever.  It may be true that delay itself may be a ground for arriving at a finding that
enquiry proceeding was vitiated in the event it is shown that by reason thereof the delinquent officer has been prejudiced, but no such case was made out.    

Mr. Rao urged that the Respondents must have condoned the misconduct on the part of the Appellant herein as they have not taken any action and initiated disciplinary proceeding after he was placed under suspension.  Reliance in this behalf has been placed on State of M.P. & Ors. vs. R.N. Mishra & Anr. [(1997) 7 SCC 644]. 

The order of suspension was passed as far back in 1986, inter alia, in contemplation of initiation of a disciplinary proceeding.  It may be true that no disciplinary proceeding was initiated against the Appellant, as a criminal proceeding was pending against him.  But, only because the criminal proceeding was pending, the same itself may not be a ground to hold that there had been a conscious act on the part of the Respondents herein to condone the misconduct on the part of the Appellant herein.

The terms and conditions of the employees of the Respondent-Bank are governed by a statute.  The Disciplinary Authority, by reason of the Rules framed, was delegated with the power of the Bank to initiate departmental proceeding against the delinquent officer and impose suitable punishment upon him, if the misconduct is proved.  In this case concept of contract of personal service as is understood in common parlance is not
applicable.  The doctrine of condonation of misconduct so evolved by ordinary law of `master and servant' is thus, not attracted in this case.  Under the common law, as also the provisions contained in Section 14(1)(b) of the Specific Relief Act, a master was entitled to terminate the services of an erring employee at his sweet will.  The dismissed employee could have sued his master only for damages and not for his reinstatement in service.  It is only for the purpose of grant of damages, a declaration was required to be
made that the termination of the service was illegal.  Having regard to the said legal position, the doctrine of condonation of misconduct evolved, in terms whereof, it was impermissible for the master to allow an employee to continue in service for a long time despite his knowledge that he had committed a misconduct and then to turn round and contend that his services should have been terminated on the ground that he was guilty of misconduct.  We may notice some decisions cited at the Bar. In L.W. Middleton vs. Harry Playfair [1925 Calcutta 87], the Calcutta High Court was concerned with the terms and conditions of service governed by contract and not by a statute.  The suit was filed by the manager of a Tea Estate for recovery of arears of salary and damages for beach of contract of employment. In District Council, Amraoti through Secretary vs. Vithal Vinayak Bapat [AIR 1941 Nagpur 125], Vivian Bose, J., following L.W. Middleton (supra), the Nagpur High Court held:

"Once a master has condoned any misconduct which would have justified dismissal or a fine, he cannot after such condonation go back upon his election to condone and claim a right to dismiss him (servant) or impose a fine or any other punishment in respect of the offence which has been condoned.  This rule is to be found in AIR 1925 Cal 87 and in many other cases."

In R.N. Mishra (supra), this Court, in view of the fact situation obtaining therein opined that the employer had condoned the misconduct stating:

"In the present case, misconduct attributed to the respondent came to light in the year 1976 when a preliminary inquiry was ordered and while the inquiry was continuing, the State Government was required to consider the case of the respondent for promotion to the post of Assistant Conservator of Forest.  Under law, the State Government had no option but to consider the case of the respondent for promotion.  The State Government could not have excluded the respondent from the zone of consideration merely on the ground that a preliminary inquiry to enquire into the allegations of misconduct attributed to him was pending.  In such a situation, the Doctrine of condonation of misconduct cannot be applied as to wash off his acts of misconduct which was the subject-matter of preliminary enquiry.  We are, therefore, of the opinion that the promotion of the respondent to the post of Assistant Conservator of Forest would not amount to condonation of misconduct alleged against him which was the subject-matter of preliminary inquiry. 
Consequently, the punishment imposed on the respondent by the State Government was valid and legal.  The decision relied upon by the Tribunal as well as by the learned counsel for the respondent in the case of Lal Audhraj Singh v. State of M.P. is not applicable to the facts of the present case, as in that case, the employer had a choice to inflict punishment on the employee but the employer did not choose to punish the employee and in that context, it was held by the High Court that the misconduct attributable to the employee was condoned."

However, for the purpose of holding that misconduct was condoned by the employer the Court must come to a definite finding as regard the conduct of the employer.  It must be held that either expressly or by necessary implication that the employer had knowledge of the misconduct of the employee.  It is one thing that despite such knowledge, the delinquent officer is promoted to which he would not have been otherwise entitled to or if the disciplinary proceeding had been initiated as if the misconduct was not committed for and it is another thing to say that such a misconduct was not required to be taken into consideration as by reason of the service Rule, promotion was to be granted on the basis of seniority alone, and, thus, the question of condonation of misconduct on the part of the employer would not arise. 

In State of M.P. vs. Bani Singh & Anr. [(1990) Supp. SCC 738], whereupon Mr. Rao placed strong reliance, this Court opined that by reason of delay of 12 years in initiating the disciplinary proceeding, the delinquent officer could not defend himself properly.  In that case there was no satisfactory explanation such a long delay.  There was also doubt as regards the involvement of the delinquent officer. 

In State of Punjab & Ors. vs. Chaman Lal Goyal [(1995) 2 SCC 570], however, this Court refused to set aside those disciplinary proceeding which had been initiated after a delay of 5= years.  Distinguishing the decision of this Court in Bani Singh & Anr. (supra), it was stated: Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay
warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing"  In Additional Supdt. of Police vs. T. Natarajan [1999 SCC (L&S) 646], this Court held: In regard to the allegation that the initiation of the isciplinary proceedings was belated, we may state that it is settled law that mere delay in initiating proceedings would not vitiate the enquiry unless the delay results in prejudice to the delinquent officer. In this case, such a stage as to examine that aspect has not arisen." In this case, as noticed hereinbefore, the Appellant did not raise the question of delay before any forum whatsoever.  He did not raise such a question even before the Disciplinary Authority.  He not only took part therein without any demur whatsoever, but, as noticed hereinbefore, cross-examined the witnesses and entered into the defence.  The Principles of natural justice cannot be put in a straight jacket formula.  It must be seen in circumstantial flexibility.   It has separate facets.  It has in recent time also undergone a sea change.  In Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia & Ors. [(2005) 7 SCC 764], a Three Judge Bench of this Court opined: We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be held to be satisfied with an unfair trial and a fair appeal.We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram
partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge18.) But we ar e also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated: " 'To do a great right' after all, it is permissible sometimes 'to do a little wrong'." [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India19 (Bhopal Gas Disaster), SCC p.           705, para 124.] While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "precedential".

In Canara Bank & Ors. vs. Debasis Das & Ors .  [(2003) 4 SCC 557], this Court referred to the prejudice doctrine stating:
"Additionally, there was no material placed by the employee to show as to how he has been prejudiced. Though in all cases the post-decisional hearing cannot be a substitute for pre-decisional hearing, in the case at hand the position is different."
The question as to whether in this case there has been a gross violation of principles of natural justice will have to be considered from two different angles. Firstly, the effect of the Disciplinary Authority having not given him an opportunity of hearing while differing with the findings of the Inquiry Officer as has been laid down in Punjab National Bank & Ors. vs. Kunj Behari Mishra [(1998) 7 SCC 84] may be noticed. In Ranjit Singh vs. Union of India & Ors. [2006 (4) SCALE 154], following Punjab National Bank (supra), it was held: "In view of the aforementioned decisions of this Court, it is now well settled that the principles of natural justice were required to be complied with by the Disciplinary Authority.  He was also required to apply his mind to the materials on record.  The Enquiry Officer arrived at findings which were in favour of the Appellant.  Such findings were required to be over turned by the Disciplinary Authority.  It is in that view of the matter, the power sought to be exercised by the Disciplinary Authority, although not as that of an appellate authority, but akin thereto.  The inquiry report was in favour of the Appellant but the Disciplinary Authority proposed to differ with such conclusions and, thus, apart from complying with the principles of natural justice it was
obligatory on his part, in absence of any show  cause filed by the Appellant, to analyse the materials on records afresh.  It was all the more necessary because even the CBI, after a thorough investigation in the matter, did not find any case against the Appellant and thus, filed a closure report.  It is, therefore, not a case where the Appellant was exonerated by a criminal court after a full fledged trial by giving benefit of doubt.  It was also not a case where the Appellant could be held guilty in the disciplinary proceedings
applying the standard of proof as preponderance of the probability as contrasted with the standard of proof in a criminal trial, i.e., proof  beyond all reasonable doubt.  When a final form was filed in favour of the Appellant, the CBI even did not find a prima facie case against him.  The Disciplinary Authority in the aforementioned peculiar situation was obligated to apply his mind on the materials brought on record by the parties in the light of the findings arrived at by the Inquiry Officer.  He should not have relied only on the reasons disclosed by him in his show cause notice which, it will bear repetition to state, was only tentative in nature.  As the Appellate Authority in arriving at his finding, laid emphasis on the fact that the Appellant has not filed any objection to the show cause notice; ordinarily, this Court would not have exercised its power of judicial review in such a matter, but the case in hands appears to be an exceptional one as the Appellant was exonerated by the Inquiry Officer.  He filed a show cause but, albeit after some time the said cause was available with the Disciplinary Authority before he issued  the order of dismissal.  Even if he had prepared the order of dismissal, he could have considered the show cause as it did not leave his office by then. 

The expression "communication" in respect of an order of dismissal or removal from service would mean that the same is served upon the delinquent officer. [See State of Punjab vs. Amar Singh Harika, AIR 1966 SC 1313]"

Contention of Mr. Bobde in this behalf that he was not prejudiced thereby cannot be accepted.  There has been a flagrant violation of principles of natural justice in so far as no show cause notice was issued to the Appellant by the Disciplinary Authority while differing with the findings of the Inquiry Officer as regard charge No.2.  We would deal with this aspect of the matter a little later.

However, the contention of Mr. Rao that only because a copy of the enquiry report was not furnished to the Appellant by the Disciplinary Authority, there has been a violation of the mandatory provisions of the regulations, cannot also be accepted for the reasons stated hereinafter. 

The order of punishment of removal against the Appellant was passed against the Appellant on 22nd July, 1990.  The decision of this Court in Mohd. Ramzan Khan (supra), as noticed hereinbefore, was decided on 20th November, 1990 wherein the law laid down by this Court, while holding that a delinquent officer cannot be called upon to make a representation on the quantum of punishment without furnishing a copy of the enquiry report, was expressly given a prospective effect.  It was, therefore, not at all necessary for the Disciplinary Authority, keeping in view the law as it then stood, to
furnish a copy of the enquiry report to the Appellant. 

Decision of this Court in S.L. Kapoor vs. Jagmohan & Ors. [(1980) SCC 379], whereupon Mr. Rao placed strong reliance to contend that non-observance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case.  The principles of natural justice, as noticed hereinbefore, has undergone a sea change.  In view of the decision of this Court in State Bank of Patiala & Ors. vs. S.K. Sharma [(1996) 3 SCC 364] and Rajendra Singh vs. State of M.P. [(1996) 5 SCC 460], the principle of law is that some real prejudice must have been caused to the complainant.  The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity.  To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal.  The Court
applies the principles of natural justice having regard to the fact situation obtaining in each case.  It is not applied in a vacuum without reference to the relevant facts and circumstances of the case.  It is no unruly horse.  It cannot be put in a straightjacket formula.  [See Viveka Nand Sethi vs. Chairman, J. & K. Bank Ltd. & Ots. (2005) 5 SCC 337 and State of U.P. vs. Neeraj Awasthi & Ors. JT 2006 (1) SC 19.  See also Mohd. Sartaj vs. State of U.P. (2006) 1 SCALE 265.]

In Union of India & Anr. vs. Tulsi Ram Patel [(1985) Supp.2 SCR 131 : (1985) 3 SCC 398], whereupon again Mr. Rao placed strong reliance, this Court did not lay down a law in absolute terms that violation of principle of natural justice would be read into the equality clause contained in Article 14 of the Constitution of India.  The said decision was rendered having regard to the fact that by taking recourse to the second proviso ppended to Article 311 of Constitution of India, no disciplinary proceeding was to be initiated at all and an order of dismissal could be passed only on the basis of subjective satisfaction of the authority empowered to dismiss or remove a person or to reduce him in rank wherefor reason was to be recorded by it in writing that it was not reasonably practicable to hold a disciplinary proceeding.   The facets of the principle of natural justice was considered in some details in State Bank of Patiala & Ors. vs. S.K.Sharma [(1996) 3 SCC 364], wherein this Court categorically held:

"Now, coming back to the illustration given by us in the preceding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of
justice. They cannot be perverted to achieve the very
opposite end. That would be a counter-productive

It was opined that in an appropriate case, the said right could also be
waived, stating:

"If it is found that he has been so prejudiced,
appropriate orders have to be made to repair and remedy
the prejudice including setting aside the enquiry and/or
the order of punishment. If no prejudice is established to
have resulted therefrom, it is obvious, no interference is
called for. In this connection, it may be remembered that
there may be certain procedural provisions which are of a
fundamental character, whose violation is by itself proof
of prejudice. The Court may not insist on proof of
prejudice in such cases."

It was further held:

"Where the enquiry is not governed by any
rules/regulations/statutory provisions and the only
obligation is to observe the principles of natural justice  
or, for that matter, wherever such principles are held to
be implied by the very nature and impact of the
order/action  the Court or the Tribunal should make a
distinction between a total violation of natural justice
(rule of audi alteram partem) and violation of a facet of
the said rule, as explained in the body of the judgment. 
In other words, a distinction must be made between "no
opportunity" and no adequate opportunity, i.e., between
"no notice"/"no hearing" and "no fair hearing".  (a) In the
case of former, the order passed would undoubtedly be
invalid (one may call it 'void' or a nullity if one chooses
to).  In such cases, normally, liberty will be reserved for
the Authority to take proceedings afresh according to
law, i.e., in accordance with the said rule (audi alteram
partem).  (b) But, in the latter case, the effect of violation
(of a facet of the rule of audi alteram partem) has to be
examined from the standpoint of prejudice; in other
words, what the Court or Tribunal has to see is whether
in the totality of the circumstances, the delinquent
officer/employee did or did not have a fair hearing and
the orders to be made shall depend upon the answer to
the said query."

It is not a case where there had been a gross violation of principles of
natural justice in the sense no disciplinary proceeding was initiated at all or
no hearing was given. 

In Canara Bank & Ors. (supra), a Division Bench of this Court held:

"It is to be noted that at no stage the employee
pleaded prejudice. Both learned Single Judge and the
Division Bench proceeded on the basis that there was no
compliance with the requirement of Regulation 6(18)
and, therefore, prejudice was caused. In view of the
finding recorded supra that Regulation 6(18) has not been
correctly interpreted, the conclusions regarding prejudice
are indefensible."

Even in Managing Director, ECIL, Hyderabad & Ors. vs. B.
Karunakar & Ors. [(1993) 4 SCC 727], this Court clearly held:

"..The theory of reasonable opportunity and the
principles of natural justice have been evolved to uphold
the rule of law and to assist the individual to vindicate his
just rights. They are not incantations to be invoked nor
rites to be performed on all and sundry occasions.
Whether in fact, prejudice has been caused to the
employee or not on account of the denial to him of the
report, has to be considered on the facts and
circumstances of each case. Where, therefore, even after
the furnishing of the report, no different consequence
would have followed, it would be a perversion of justice
to permit the employee to resume duty and to get all the
consequential benefits. It amounts to rewarding the
dishonest and the guilty and thus to stretching the 
concept of justice to illogical and exasperating limits. It
amounts to an "unnatural expansion of natural justice"
which in itself is antithetical to justice."

It was further opined:

"..If after hearing the parties, the Court/Tribunal
comes to the conclusion that the non-supply of the report
would have made no difference to the ultimate findings
and the punishment given, the Court/Tribunal should not
interfere with the order of punishment. The
Court/Tribunal should not mechanically set aside the
order of punishment on the ground that the report was not
furnished as is regrettably being done at present. The
courts should avoid resorting to short cuts. Since it is the
Courts/Tribunals which will apply their judicial mind to
the question and give their reasons for setting aside or not
setting aside the order of punishment, (and not any
internal appellate or revisional authority), there would be
neither a breach of the principles of natural justice nor a
denial of the reasonable opportunity. It is only if the
Court/Tribunal finds that the furnishing of the report
would have made a difference to the result in the case
that it should set aside the order of punishment"

What then would be the consequence of violation of principles of
natural justice, so far as the dicta laid down by this Court in Punjab
National Bank & Ors. (supra) is concerned is the question.

The charges against the Appellant are almost identical.  Primarily,
charges of similar nature in respect of commission of misconduct on nine
different occasions were the subject matter of the disciplinary proceeding. 
The charge No.2 constituted an independent charge, as commission of one
misconduct had nothing to do with the commission of similar nature of
misconduct on all other occasions.  The said charge was, therefore,

A Constitution Bench of this Court in State of Orissa & Ors. vs.
Bidyabhushan Mohapatra [(1963) Supp.1 SCR 648 : AIR 1963 SC 779]

"The High Court has held that there was evidence
to support the findings on heads (c) & (d) of Charge (1)
and on Charge (2).  In respect of charge 1(b) the
respondent was acquitted by the Tribunal and it did not
fall to be considered by the Governor.  In respect of
charges 1(a) and 1(e) in the view of the High Court "the
rules of natural justice had not been observed".    
It is not necessary for us to consider whether the High
Court was right in holding that the findings of the
Tribunal on charges 1(a) and 1(e) were vitiated for
reasons set out by it, because in our judgment the order
of the High Court directing the Government to reconsider
the question of punishment cannot, for reasons we will
presently set out, be sustained.  If the order of dismissal
was based on the findings on charges 1(a) and 1(e) alone
the Court would have jurisdiction to declare the order of
dismissal illegal but when the findings of the Tribunal
relating to the two out of five heads of the first charge
and the second charge was found not liable to be
interfered with by the High Court and those findings
established that the respondent was prima facie guilty of
grave delinquency, in our view the High Court had no
power to direct the Governor of Orissa to reconsider the
order of dismissal."

The Constitution Bench therein has clearly laid down that even if the
charges which have been proved, justify imposition of punishment of
dismissal from service, this Court may not exercise its power of judicial

The said decision was noticed by this Court in Binny Ltd. Vs.
Workmen [AIR 1972 SC 1975 : (1972) 3 SCC 806], in the following terms:

".It was urged that the Court should not have assumed
that the General Manager would have inflicted the
punishment of dismissal solely on the basis of the second
charge and consequently the punishment should not be
sustained if it was held that one of the two charges on the
basis of which it was imposed was unsustainable. This
was rejected following the decision in State of Orissa v.
Bidyabhan Mohapatra, where it was said that if an order
in an enquiry under Article 311 can be supported on any
finding as substantial misdemeanour for which
punishment imposed can lawfully be given, it is not for
the Court to consider whether that ground alone would
have weighed with the authority in imposing the
punishment in question. In our view that principle can
have no application to the facts of this case. Although the
enquiry officer found in fact that the respondent had
behaved insolently towards the Warehouse Master, he
did not come to the conclusion that this act of
indiscipline on a solitary occasion was sufficient to
warrant an order of dismissal."

Yet again, in Sawarn Singh & Anr. vs. State of Punjab & Ors.
[(1976) 2 SCC 868], this Court held:

"19.   In view of this, the deficiency or reference to some
irrelevant matters in the order of the Commissioner, had
not prejudiced the decision of the case on merits either at
the appellate or revisional stage. There is authority for
the proposition that where the order of a domestic
tribunal makes reference to several grounds, some
relevant and existent, and others irrelevant and non-
existent, the order will be sustained if the Court is
satisfied that the authority would have passed the order
on the basis of the relevant and existing grounds, and the
exclusion of irrelevant or non-existing grounds could not
have affected the ultimate decision."

We are, therefore, of the opinion that charge No.2 being severable,
this Court can proceed on the basis that the charges against the Appellant in
respect of charge No.2 was not proved.

In Orissa Cement Limited vs. Adikanda Sahu reported 1960 (1)
LLJ SC 518 that a verbal abuse may entail imposition of punishment of
dismissal from service.

The said decision has been followed in Mahindra and Mahendra
Ltd. vs.  N.N. Narawade etc. reported in JT 2005 (2) SC 583.

The question as regard the jurisdiction of this Court to interfere with
the quantum of punishment, it is well known, is limited.  While exercising
the said jurisdiction, the Court, only in very exceptional case, interferes

In Chairman & M.D., Bharat Pet. Corpn. Ltd. & Ors. vs. T.K.
Raju JT 2006 (2) SC 624, this Court opined:

"15.   We also do not agree with the submission of Mr.
Krishnamani that two of the eight charges have not been
found to be proved.  The charges levelled against the
respondent must be considered on a holistic basis.  By
reason of such an action, the respondent had put the
company in embarrassment.  It might have lost its image. 
It received complaints from the Federation.  There was
reason for the appellant to believe that by such an action
on the part of the respondent the appellant's image has
been tarnished.  In any event, neither the learned Single
Judge nor the Division Bench came to any finding that
none of the charges had been proved.

16.     The power of judicial review in such mattes is
limited.  This Court times without number had laid down
that interference with the quantum of punishment should
not be one in a routine manner."

[See also A. Sudhakar vs. Post Master General, Hyderabad &
Anr. (JT 2006 (4) SC 68)]

For the reasons afore-mentioned, we are of the opinion that it is not a
fit case where this Court should exercise its discretionary jurisdiction under
Article 136 of the Constitution of India.  This appeal is, therefore, dismissed. 
However, in the facts and circumstances of this case, there shall be no order

Appeal (civil)  959-960 of 2000

D.C. Aggarwal (Dead) by LRs.

State Bank of India and another

DATE OF JUDGMENT: 27/04/2006

B.N. Srikrishna & Lokeshwar Singh Panta


Srikrishna, J.

          These two appeals arise between the same parties and are
interconnected. Hence, they can be disposed of by a common

          The appellants are the legal representatives of one D.C.
Aggarwal, an erstwhile employee of the respondentState Bank of
India, who have brought these appeals claiming: (a) the benefits of an
extension in service of the said D.C. Aggarwal up to the age of sixty
years; and (b) the benefits arising out of notional promotion which
ought to have been granted to the said employee, etc.  For the purpose
of convenience, the said D.C. Aggarwal shall be referred to as  "the
appellant" in the course of our judgment.

Background to the Promotion Issue
          The appellant joined the respondent-bank as Probationary
Officer on 15.1.1960. He got repeated promotions during the period
1960-1980, reaching all the way to Top Executive Grade Scale VI
(hereinafter "TEGS VI") as a Deputy General Manager on 27.7.1980.
On 4.1.1981, the appellant was posted as Deputy General Manager of
the respondent-bank at Chandigarh and was put in charge of the
respondent-bank's branches in the State of Haryana and in the Union
Territory of Chandigarh. On 8.7.1981, the appellant's explanation was
called for in respect of some irregularities pertaining to his work. He
gave an explanation, which was not acceptable to the respondent-bank
and on 11.7.1981, he was placed under suspension. The respondent-
bank conducted an inquiry and the investigating officials held an ex-
parte inquiry. The appellant challenged the investigation and the
matter ultimately landed up in this Court. This Court disposed of the
matter by a direction that the Central Vigilance Commission appoint
an inquiry officer who would re-open the inquiry from the stage it was
closed.  Further directions were given so as to enable the parties to
lead evidence and to ensure that the inquiry was conducted

The inquiry was conducted by one A.K. Rastogi, a senior IAS
officer, who submitted his report on 30.5.1985 by which he
exonerated the appellant of most of the major charges; and put on
record that most of the charges were fabricated and were intended to
denigrate the conduct of the appellant as a senior and responsible
official of the bank. The report of A.K. Rastogi was considered by the
Central Vigilance Commission, which, however, disagreed with his
findings and found the charges proved against the appellant. It
recommended that, at the very least, the appellant be removed from
service. The Disciplinary Authority of the respondent-bank, through
an elaborate order, agreed with the findings of the Central Vigilance
Commission, except with regard to the recommendation on the
quantum of punishment. It found that the recommended punishment
of removal from service, was too harsh and instead imposed the
punishment of demotion by two grades on the appellant.
Consequently, the appellant was relegated to Middle
Management Scale IV, virtually resulting in the forfeiture of almost
more than a decade's service of the appellant. This order was
confirmed by the executive committee of the respondent-bank on
4.11.1987. The appellant joined the demoted post of Secretary,
Banking Services Recruitment Board, Chandigarh, though under
protest. Within twenty-six days, he was transferred to Bhopal. He,
however, did not join the post at Bhopal on the ground that it was
against the rule for officers of Middle Management Grade Scale to be
transferred out of the circle. After about six months, the transfer of the
appellant was cancelled and he was permitted to join in the demoted
post as Officer on Special Duty, Zonal Office, Chandigarh. A
departmental appeal carried by the appellant against the order of the
penalty imposed on him, was dismissed.

During the aforesaid period, the appellant was not considered
for promotion to the post of General Manager (TEGS VII) on
1.8.1984, 20.2.1986, 8.6.1987, 1.8.1988, 24.4.1989 and 3.2.1992.
Also, the appellant's case was not considered under the "sealed cover
procedure" pending finalisation of the departmental proceedings. On
17.4.1989, the appellant moved a Civil Writ Petition No.15874/1989
challenging his order of demotion before the Punjab and Haryana
High Court. The learned Single Judge allowed the writ petition and
granted him the relief sought for. A Letters Patent Appeal No.
553/1991 carried by the respondent-bank was dismissed by the
Division Bench of the High Court. The respondent-bank moved this
Court by filing Special Leave Petition No. 10198/1991. This Court
dismissed the appeal by holding that the appellant had been prejudiced
in the matter of his defence; it was held:
"The order is vitiated not because of mechanical exercise of
powers or non-supply of the inquiry report but for relying and
acting on material which was not only irrelevant but could not
have been looked into. Purpose of supplying document is to
contest its veracity or give explanation. Effect of non-supply of
the report of Inquiry Officer before imposition of punishment
need not be gone into nor it is necessary to consider validity of
sub-rule 5. But non-supply of CVC recommendation which was
prepared behind the back of respondent (appellant herein)
without his participation, and one does not know on what
material which was not only sent to the Disciplinary Authority
but was examined and relied, was certainly violative of
procedural safeguard and contrary to fair and just inquiry."

In the result, this Court was of the view that the inquiry against the
appellant had been rightly quashed by the High Court.
          Consequent to the aforesaid Order, on 7.11.1992, the appellant was
transferred to Hyderabad as Deputy General Manager, but he refused to join
there as a matter of protest and remained absent without leave.
Subsequently, the appellant's posting in Hyderabad was cancelled and he
was posted at Chandigarh once again and he retired with effect from
10.9.1993 after working as Deputy General Manager.

    However, when the appellant was still in service, on 28.12.1992, the
appellant was given a fresh showcause notice for an inquiry against him. The
appellant challenged the fresh show cause notice by filing Contempt Petition
No.1098/92 before the High Court in which two Managing Directors of the
respondent-bank V. Mahadevan and P.V. Subba Rao were made
respondents. The said respondents challenged the initiation of the contempt
proceedings against them, before this Court, by Special Leave Petition Nos.
1707-08/1993. Leave was granted therein and Civil Appeal Nos. 1017-
18/1993 was disposed of by this Court with the following three directions :
1.       "no fresh enquiry shall be held against the respondent for
the act or commission for which action was taken against
him which resulted in reduction from rank in 1987. Notice
dated 28th December, 1992 shall stand withdrawn."
2.       "The State Bank of India shall reconsider the claim of
promotion of the respondent to higher scale in accordance
with rules. We do not express any opinion on the question if
interview for higher scale is necessary and if there was any
valid justification for not promoting the respondent whose
record prior to these proceedings is unblemished but if under
the policy framed by the bank and followed in other cases,
constitution of a committee and interview is necessary then
the committee be constituted but the Managing Director,
State Bank of India, Central Office, Bombay and Managing
Director (Personnel), State Bank of India, Central Office,
Bombay who are appellants in this Court may not be its
3.       "The committee shall be constituted within three weeks
from today which shall decide if respondent (the appellant
herein) was entitled to be promoted to higher scale" and if
the committee decides that the appellant is not suitable for
promotion it shall give reasons therefor.
4.       In view of the abovesaid conditions, the contempt
proceedings against the two Managing Directors of the
respondent-bank were dropped.

Pursuant to the directions issued by this Court, the General Manager
(Operations) Chandigarh issued a letter dated 26.8.1993 calling upon the
appellant to attend an interview so as to adjudge his suitability for promotion
to TEG Scale VII (General Manager's Post). The appellant appeared before
the Interview Committee on 1.9.1993. The Committee  awarded him only
25.7% marks as a result of which he was informed by a letter dated 8.9.1993
that his claim for promotion was rejected as he was found unsuitable by the
Interview Committee. The appellant made a representation thereagainst to
the Chairman of the respondent-bank. He also approached this Court by a
Contempt Petition No. 324/1993 in Civil Appeal No. 4017-18/1993 for
initiation of contempt proceedings against the respondent-bank and its
officers. This Contempt Petition was withdrawn on 17.9.1993 with liberty to
move the High Court for appropriate relief. The appellant thereupon filed
Civil Writ Petition No.15245/1993 before the High Court by which he
impugned the action of the respondent-bank in not granting him the
promotion he sought. He also claimed therein salary from November 1992 to
16.6.1993, which was denied to him on the ground that he had failed to
report to Hyderabad where he had been posted and had remained absent
without leave.

          The appellant's Writ Petition No. 15245/1993 was allowed on the
ground that, under the policy applicable to the appellant's case, an interview
by the Departmental Promotion Committee was not envisaged and that his
claim for promotion had to be decided by an informal interview by the
Managing Director and some other officers. The Single Judge also held that
it could not be said that the appellant had been absenting himself from
8.11.1992 to 16.6.1993 as his posting at Hyderabad was unfair and had been
cancelled. Thus, his claim for salary was allowed. The respondent-bank
challenged the learned Single Judge's judgment by filing Letters Patent
Appeal No. 364/1998 in which the appellant also filed cross-objections.

Background to the Extension Issue
          During the pendency of the litigation between the appellant and the
respondent-bank, the appellant was granted extension in service from
10.3.1991 to 9.9.1993 i.e. upto the age of fifty-eight years by a letter dated
9.9.1993. He was also informed that the Review Committee had not
recommended further extension of his service in terms of Rule 15 of the
State Bank of India Service Rules; as a result of which, the appellant would
retire on attaining the age of superannuation with effect from 10.9.1993. The
appellant preferred an appeal before the Chairman of the respondent-bank,
which was turned down. Thereafter, he filed Civil Writ Petition No.12062 of
1993, which was also dismissed by the Division Bench on 5.10.1993. He
then carried Special Leave Petition 17752/1993 to this Court. Leave was
granted therein and the resultant Civil Appeal No. 1609/1994 was allowed
on 11.3.1994. This Court disposed of the appeal by the following operative
"In the result, this appeal succeeds and is allowed. The orders
passed by the High Court, the Appellate Authority and the
Review Committee are quashed. The respondents are directed
to constitute a fresh committee of the personnel mentioned in
the rule itself. In case the appellant had made any allegation
against any of those Deputy Managing Directors, then the
committee shall comprise of Deputy Managing Directors, other
than those who are mentioned in the rules. The earlier Deputy
Managing Directors who were the members of the committee
shall not be members of the new committee. The
recommendations of the committee shall be placed before the
competent authority who shall be different and higher in rank
then (sic-than) the members who shall constitute the committee.
Such committee shall be constituted within two weeks from
today and the decision by the competent authority shall be
taken within two weeks thereafter."

          The respondent-bank filed I.A. No. 3/1994 for clarification of the
aforesaid order on the ground that the Chairman and Managing Director is
the Appellate Authority and as a consequence, he could not deal with the
Committee to consider the case for extension of the appellant. It was pointed
out that the appellant had made serious allegations against several senior
officers, as a result of which, they could not be nominated as members of the
Review Committee. Accordingly, in pursuance of the time bound directions
of this Court, the Executive Body of the respondent-bank decided on
27.5.1994 to formally constitute a three-member committee comprising S.
Doreswamy, Chairman-cum-Managing Director, Central Bank of India as its
Chairman/Competent Authority, and the two other members were R.
Vishwanathan, Deputy Managing Director (Commercial Banking) and G.
Kathuria, Deputy Manager Director (Treasury and Investments
Management). The three-member Review Committee would consider and
decide the claim of the appellant for extension of his term in accordance
with the rules. It was also made clear in the order of this Court that it was
not open to the parties to challenge the constitution of the Committee in any
further proceedings. It was also directed that, the Committee be constituted
within two weeks and thereafter the Competent Authority take a decision
within two weeks.

           R. Vishwanathan and G. Kathuria held two meetings on 6.6.1994 and
9.6.1994 and on 16.6.1994 recommended to the Chairman/Competent
Authority that it was not in the interest of the respondent-bank to extend the
services of the appellant beyond the age of fifty-eight years. The Chairman
accepted the recommendation on the very same day. All the three members
of the Committee met on 16.6.1994, and recorded the minutes of the
proceedings making a recommendation against granting an extension of
service to the appellant. The appellant once again challenged this by way of
Contempt Petition No. 4/1995 which was dismissed as withdrawn with
liberty to impugn it by appropriate proceedings.

The appellant filed Civil Writ Petition No. 5567/1995 challenging the
decision of the respondent-bank not to grant an extension to him. The
learned Single Judge was of the view that the Committee was biased against
the appellant on account of his history of previous litigation; that other
officers who were not as competent as the appellant had been granted
extensions up to the age of sixty years and thus, there was discrimination
against the appellant. Consequently, the learned Single Judge interfered and
set aside the recommendation and held that the action of the Review
Committee and the Competent Authority was arbitrary. Thus, the writ
petition was allowed and the relevant orders were quashed. The respondent-
bank challenged the said judgment of the learned Single Judge in Letters
Patent Appeal No.81/1999 in which the cross-objections were also filed by
the appellant.

          The Division Bench of the High Court by its impugned judgment
dated 9.3.1999 referred commonly to the Letter Patent Appeals in the
Promotion and Extension matters. It allowed both the appeals and set aside
the judgments of the learned Single Judge by holding that the action of the
respondent-bank was not liable to be interfered with on any ground. Hence
this appeal.

Promotion Matter
The learned counsel for the appellant elaborately pointed out the
history of the litigation between the parties commencing from the first
showcause notice given to the appellant and the final order made against
him. Counsel also highlighted the fact that all the disciplinary orders had
been set aside by this Court from time to time. His contention was that, this
had resulted in an institutional bias against the appellant. Counsel suggested
that all the top officers of the respondent-bank were biased against the
appellant and were unanimously against him.

The second contention of the learned counsel is that the appellant was
a brilliant officer who, between the period 1960 to 1981, had succeeded to
the top echelons of the respondent-bank by dint of his merit. It was only
thereafter that, the top officers deliberately spoiled his good record by giving
him showcause notices on frivolous grounds, which were ultimately quashed
by this Court. He submitted that the appellant had already reached TEGS VI
and the case of the appellant for TEGS VII had to be considered on four
different dates: 1.8.1984, 20.2.1986, 8.6.1987, 1.8.1988 and thereafter on
24.4.1989 and 3.2.1992. It is contended that, during the period the appellant
was under suspension, the respondent-bank was bound to consider his case
under the "sealed cover procedure", which the respondent-bank had failed to
do. Thus, the legitimate claim of the appellant was defeated on account of
the bias against him, as well as, for not following the procedure prescribed.

          Taking the second point first, it appears to us that the contention is
misconceived. The learned counsel contends (and the learned Single Judge
agreed with this) that the respondent-bank had erred by retrospectively
applying the procedure prescribed in the policy document dated 11.3.1989,
for promotions to be considered between 1.8.1984 to 1.8.1988. We are
satisfied that this was a mistake on the part of the learned Single Judge for
he failed to take notice of a document which was placed on record. This
document was dated 23.2.1984, and modified an earlier promotion policy
enunciated in the year 1982. There is no dispute that such a document
existed and that it was placed on record before the learned Single Judge.
There is also no dispute that such a policy governed the case of the
appellant. With this in mind, the Division Bench has correctly analysed the
facts and pointed out that for the first four dates on which the appellant's
promotion had to be considered i.e. on 1.8.1984, 20.2.1984, 8.6.1987 and
1.8.1988, the assessment had to be made under the terms of the policy dated
23.2.1984. While learned Single Judge was under the impression that the
case of the appellant for promotion was governed by the policy of 1982, the
Division Bench rightly points out that by this time the modified policy of
1984 had already come into force. By the Government of India Circular
dated 28.9.1983, guidelines were issued to add to Regulation 17 of the
Officers Service Recruitments the following:
"All promotions to Senior Management Grade, Scale V and
Top Executive Grade, Scale VI and VII will be made by a
Committee of Directors consisting of the Managing Director,
the Government Director and the Reserve Bank of India
Director on the basis of the evaluation of the past performance
and the assessment of the potential of the eligible officers by
the said Committee."

The memorandum titled "Executive Selection System", prepared for
the Central Board of the respondent-bank dated 21.2.1984 in respect of the
promotion system inter alia for TEGS VI, TEGS VII, TEG Special Scale,
noted (vide paragraph 2):
 "The system is essentially merit based, seniority being given
due weightage for the purpose of reckoning eligibility (among
officers of equal merit or suitability, seniority would count).
While performance on a given job is assessed in terms of the
identified key responsibility areas, potential to shoulder the
responsibilities in the higher management cadres assumes

For assessing these factors, the memorandum prescribed (vide paragraph
2(iv)) "a supplementary process of structured interview for promotion to
Senior Management Grade Scale V and Top Executive Grade Scale VI."
The interviews were to be held by a Committee consisting of the Managing
Director and any one or more of the other members of the Central
Management Committee "with a view to assessing the officer's potential".

More importantly, the memorandum noted (vide paragraph 2(v)):
"The eligible officials are assessed separately on the basis of
their (a) past performance and (b) potential for handling higher
assignments. An officer who is unable to get a minimum score
of 60% (or equivalent rating) either in the appraisal of his
performance or in the interview, is not considered for
promotion. Giving equal weightage to the two processes, the
merit list is prepared by adding the ratings/scores in respect of
both the aspects and officers equivalent to the number of
vacancies are recommended to the Executive Committee of the
Central Board for promotions strictly according to their
positions in the merit list."

          The above memorandum was placed before the Central Board of the
respondent-bank and was considered by it during its meeting on 23.2.1984.
In pursuance of the memorandum, the Central Board resolved that a
Departmental Promotion Committee act as the Recommending Authority for
promotions to Senior Management Grade Scale V and above. Thus, it is
clear that the appellant's case for promotion between 1.8.1984 to 1.8.1988
had to be considered in the light of the promotion policy of 1982, as
modified by the policy of 1984. Hence, the Division Bench was right in its
view that there was no question of the policy of 1989 being applied
retrospectively in the case of the appellant. We agree with the view of the
Division Bench in this regard.

          The Interview Committee noted that the appellant had been under
suspension from 21.7.1981 to 12.11.1987 and his service upto 21.7.1981
only had to be taken into consideration for appraisal of the past performance
of the appellant in the same manner as had been done for other eligible
officers. Considering the case of the appellant on each of the relevant dates,
the Committee found that although the appellant had obtained 60%  marks
for "performance appraisal", his performance at the interview was very poor
as he had obtained only 25.7%  marks. Thus, on each of the relevant dates,
the Committee was of the view that his case could not be considered for
promotion to TEGS VII. The High Court rightly points out that, whatever
might have been the assessment of the appellant on the basis of an informal
interview conducted under the promotion policy prior to 1982, he was now
required to undergo a structured and formal interview before a Committee
which would adjudge him on the basis of indicia as prescribed in the 1984
policy. We can hardly find fault with the Committee for its decision in
rejecting the claim of the appellant for promotion to TEGS VII, which
undoubtedly, is a grade at the highest level requiring extreme responsibility
on the part of the officer concerned.

          Taking the first argument of the learned counsel for the appellant, that
the appellant's case was rejected because of institutional bias, we are of the
view that this is nothing but resurrection of an issue which had been finally
laid to rest by this Court. Having examined the matter between the parties,
this Court had said by its order that the appellant's acts should be considered
by a Committee which did not include any of the officers who had been
made respondents in the previous litigations. The general argument of
institutional bias or that of senior officers being biased against him, does not
cut ice with us. Having noted the questions that were asked of him, and the
manner in which the appellant replied to them, it appears to us that there was
no doubt that the appellant (who had been adjudged to be excitable by the
Interview Committee, the learned Single Judge, the Division Bench and
even this Court)  had either displayed ignorance of the requisite knowledge
to answer the questions or was taking up an obstructive attitude in order to
scuttle the interview, which according to him could not have been held. The
Division Bench was being charitable in assuming that the appellant had
sufficient knowledge but deliberately obstructed the interview. We cannot
say that the assessment made by the Division Bench is in anyway erroneous
or does not arise from the facts placed before it. The Division Bench of the
High Court came to the conclusion that the appellant had never intended to
submit to the interview but wanted to filibuster and ultimately to scuttle it,
although he was aware of the consequences of his actions.

We agree with the impugned judgment of the High Court that no fault
could be found with the Interview Committee when they assessed the
performance of the appellant to be poor. We have seen the record and the
three questions that the Committee put to the appellant. Answers to those
three questions would have demonstrated the depth of knowledge the
appellant had in his professional field. The answers given by him to the
questions asked, suggest that either he was incapable of answering them or
that he was deliberately filibustering the interview. In either event, he did
not deserve to be selected by the Interview Committee. No fault can be
found with the decision of the Interview Committee or with the decision of
the respondent-bank that the appellant was not fit for promotion to TEGS

Extension Matter
          As a result of the order made by this Court in Civil Appeal
No.1609/1994 dated 11.3.1994, together with the order made on 13.5.1994
in I.A. No. 3/1994, the respondent-bank requisitioned the services of S.
Doreswamy, Chairman-cum-Managing Director, Central Bank of India to
act as the Chairman/Competent Authority of a three-member committee to
make recommendations as to whether the appellant's services were to be
extended till the age of sixty years. As we have already pointed out, the
other two members of the committee were R. Vishwanathan, Deputy
Managing Director (Commercial Banking) and G. Kathuria, Deputy
Manager Director (Treasury and Investments Management). In the course of
the hearing, the parties accepted the names of the above-mentioned officers
without demur or protest. The two members of the Committee i.e. R.
Vishwanathan and G. Kathuria, considered the entire service record of the
appellant and recommended that it was not in the respondent-bank's interest
to give an extension in service to the appellant. The Chairman of the
Committee/Competent Authority also concurred with this recommendation.
The recommendations thus made by the Committee were accepted by the
management of the respondent-bank.

          The appellant could not have challenged the constitution of the
Committee as this Court had specifically precluded any such attempt. The
learned counsel before us contended that there was an institutional bias that
affected the decision of the three-member Committee, which was not
objective in its assessment. We find this difficult to accept. That there was
bad blood between the appellant and some top officers of the bank is an
admitted fact. It was precisely because of this that this Court took the trouble
of formulating a Committee headed by an outsider as its Chairman, so that a
decision could be taken objectively as to the suitability of the appellant to be
granted the extension he sought. The Committee went into the entire service
record and after scanning through the Annual Confidential Reports of the
appellant, took a decision, which we think was fair and objective, that no
extension as sought for, could be granted.

The learned counsel for the appellant further contended that the
decision of the Committee was influenced by a report made by the General
Manager, Chandigarh Circle and that the Committee did not independently
look into the facts of this case. This is an argument that cannot be
countenanced. It is difficult to believe that the two top-most officers of the
respondent-bank, who were accepted without demur or protest as members
of the Committee, and a person of the rank of Chairman-cum-Managing
Director of an unconcerned bank and who had no interest in the matter
whatsoever, would all conspire together so that the appellant was denied an

          The argument for the learned counsel for the appellant proceeded on a
misapprehension of the manner in which extension of service is to be
granted. In State Bank of Bikaner and Jaipur and others v. Jag Mohan
Lal  (hereinafter "Jag Mohan Lal") this Court had occasion to point out that
a rule under which extension of service can be granted beyond the normal
age of retirement, does not invest a legal right in the employee to be granted
such an extension.  The very same regulation as in this case was interpreted
in Jag Mohan Lal (supra) and it was pointed out therein that the sole
purpose of giving extension of service is to promote the interest of the bank
and not to confer any benefit or favour on retiring officers.  It was pointed
out that it was not a conferment of a benefit or privilege on officers. Merely
because the officer has put in the requisite number of years of service, that
does not earn him/her that benefit or privilege. This Court observed:

"The Bank, however, is required to consider the case of
individual officers with due regard to (i) continued utility; (ii)
good health; and (iii) integrity beyond reproach of the officer. If
the officer lacks one or the other, the Bank is not bound to give
him extension of service. In this case, the Bank has shown to
the High Court that the case of the respondent was considered
and he did not fit in the said guidelines. The High Court does
not sit in an appeal against that decision. The High Court under
Article 226 cannot review that decision."

If the bank considers that the continuance of services of an officer  is
desirable in the interest of the bank, it may allow him to continue beyond the
age of superannuation. If the bank considers that the service of the officer is
not required beyond the age of superannuation, that is the end of the matter.
Further, non-extension of service is no reflection on the calibre of the officer
and it carries no stigma.

          It appears to us that these principles were not kept in mind by the
learned Single Judge when he interfered with the discretion of the
respondent-bank not to grant an extension to the appellant. The Division
Bench has, however, rightly applied the legal principle stated in Jag Mohan
Lal (supra) and found that there was no such right vested in the appellant to
demand an extension beyond the age of fifty-eight years. Further, in the facts
and circumstances of the case, the Division Bench found that the extension
had been refused for good reasons and was not liable to be interfered within
its writ jurisdiction. We agree with this reasoning of the High Court.

Relief Prayed For

          There is another issue that precludes any relief being granted to the
appellant. As a matter of fact, the appellant retired from service on 9.9.1993
and died in 2005. The learned counsel for the appellant contended that even
though the appellant had died, his legal heirs could be granted the monetary
benefits on the footing that the appellant was entitled to get extension of
service by two years and was also entitled to promotion to TEGS VII. In our
view, both these contentions are unsustainable. Even if the appellant were to
succeed in his appeal, the most favourable order for him could have been a
direction to the respondent-bank to reconsider his case for promotion to
TEGS VII as also to reconsider extension of his service beyond the age of
fifty-eight years. Thus, even with such a direction, it would not have been
possible for us to say that the respondent-bank was bound to grant either of
the appellant's claims. Thus, there is no question of monetary relief being
granted to the legal heirs of the appellant. Further discussion on this aspect
becomes unnecessary since we are not satisfied that the appellant was
entitled to any relief.

In the result, we find no substance in both the appeals. The impugned
judgment of the High Court is unexceptionable. Consequently, the appeals
before us are hereby dismissed. In the circumstances of the case, there shall
be no order as to costs. to costs. e no orders as to costs.

Appeal (civil) 8569  of  1997




DATE OF JUDGMENT:          09/04/2001

S. Rajendra Babu & Shivaraj V. Patil



    This  appeal  is  filed  against an award  made  by     the
Industrial Tribunal, Kanpur on a reference made to it on the
following question:

    Whether  the action of the management of Bank of  India
in  not          paying         special allowance to the  staff  posted  at
clearing  house of Lucknow, Agra, Unnao, Varanasi and Kanpur
as  per         list enclosed is justified?  If not to what  relief
were the workmen entitled?

    The         Tribunal  held   that          the  concerned          workmen   are
entitled  for special assistant allowance for the number  of
days  they have worked at various collection centres and the
same  shall  be      payable for the number of  days  they   have
actually worked with effect from the date of reference.     The
workmen     in  question  worked at various  centres  including
Collection  Centre,  Kanpur, Lucknow and Varanasi  and    Main
Branches,  Agra  and  Unnao of their Banks  as          detailed  in
Annexure  thereof.   They  claimed that they  performed    the
duties as authorised representatives of the Bank of clearing
house at the Reserve Bank of India, Kanpur and State Bank in
clearing  house at  the Reserve Bank of India, Kanpur        and
State Bank of India, Lucknow, Agra, Unnao and Varanasi which
fall  under  the duties of Special Assistant.          The  workmen
claimed        that  they  are checking or  scrutinizing  all      the
schedules  and/or  vouchers received along with the  cheques
and  other instruments as per para XIX(III) of Appendix     B
of  1st Bi-partite Settlement dated 19.10.1966.  The workmen
claimed        that  they are entering each cheque, demand  draft,
pay  slips, etc.  with their respective credit voucher i.e.,
Branch          Debit Note drawn on Regional Collection Centres        and
Main  Branch in clearing house register and balancing as per
paragraph  45.5 of Manual of Instruction, Volume I,  Chapter
127 to the following effect:

    Particulars    of  all  cheques   drawn  on  other  local
clearing  banks received  by the  Branches  for  collection
should          thereafter be sorted and listed bankwise.  The total
of  cheques entered in the clearing cheques register  should
agree  with  the total amount of cheques listed on  all the
clearing  schedules  and also with the total amount  of   the
relatives paying-in-slips.

    The workmen further claimed that the cheques/instruments
are  sorted  bankwise  and  posted   the  cheques  etc.      in
totalling  and numbering as per paragraph 45.5 of Manual  of
Instruction;   that  the workmen are to check  crossing       and
clearing  stamp on  each cheques and other  instruments  on
front  face  of these instruments and endorsement stamps  of
the  bank on each instrument;  that the checking of total in
List  of Cheques with the books of the Bank i.e.  clearing
cheques       register, mentioned in each sheet for the different
bank; that  checking          each  list of  cheques          in  clearing
schedule  of the bankwise with cheque numbers in the  column
Delivered  in  left  hand side drawn on      other          banks  and
totalling  all          the amounts of the cheques mentioned in          the
different list of cheques mentioned in the different list of
cheques register;  that the workmen receive various cheques,
demand draft, pay slip and other instruments in the clearing
house  from  different banks and also make the entry in   the
column          Received bankwise with cheque numbers in the right
side  and totalling all the amount and cheques mentioned  in
their  different  sheets of the bank;  that the checking  is
for  the correctness of endorsement crossing stamp, clearing
stamps,        date  of the returning of the cheques, date of         the
cheques,  comparison  of  cheques and totalling the  amount
delivered  by the different banks as per para III(I)(xi) and
(iii)  of  Appendix  B of Bi-partite Settlement;   that    the
workmen     prepare  debit  and credit  vouchers  according  to
cheques       and  the  instruments after checking  the  clearing
schedule  on  account of cheques received from  other  banks
daily;  that  the workmen also sign the difference  of      the
entries          such  as  to  pay or  receive          in  the independent
capacity  of authorised representative of clearing house  as
Clearing  in-charge at the Reserve Bank of India and State
Bank  of  India on behalf of the Bank in the clearing  house
after  delivering and receiving the different instruments in
sheet  for   submissions  and    receiving   the   different
instruments  in sheet for submission to the Reserve Bank  of
India and State Bank of India;          that the workmen are holding
banks  valuable       cheques,  drafts   and  other          instruments
signally  and  are accountable for them and are     responsible
for  the  clearing department of the bank and prepare,          sign
independently  clearing and transfer vouchers such as to pay
or  receive on account of the cheques delivered or  received
from  different banks through the sheet in the bank  account
mentioned by the Reserve Bank of India and the State Bank of
India  which constitute the additional duties and  fucntions
requiring  the          greater        skill and responsibility  over         and
above  the  routine duties of the workmen in terms  of          Para

    The         appellant-Bank filed a written statement contending
that  though  the  workmen  have  performed  the  duties  of
attending  the          clearing house on behalf of the Bank, they
have  not  discharged  any of the duties so  as to  attract
payment       of special allowance by way of Special Assistant as
none  of  the duties are being performed by them to  attract
such  allowance     and denied the various claims made  by      the
workmen.   They  submitted that they are  simply  delivering
cheques       of  the  Bank drawn on other  banks  and  receiving
cheques       drawn by other banks on their Bank at the  clearing
house  after  counting the number of cheques/instruments  as
per  schedule listing it bankwise in the sheets, arriving at
the  clearing  different  and preparation of  the  different
vouchers,  segregation          of the instruments categorywise        and
preparation  of      debit in nature and in no way          require        any
greater         skill and responsibility warranting payment of  any
special allownace.  It was also contended that the duties of
Special        Assistant  as          laid down in  Bi-partite  Settlement
dated  19.10.1966  have   been  modified      in  the  subsequent
Bi-partite  Settlement          dated  17.9.1984 and the  duties  of
special         assistant  as          laid  down in  the  said  Bi-partite
Settlement 1984 are as listed in the Annexure A thereto.  It
was  contended          that para 5.267 of the Desai Award  has  not
been modified by any subsequent Bi-partite Settlement and is
still  in  existence  and  that the clerks  deputed  to  the
clearing  house are  not in charge of the  Banks  clearing
department  but are simply clerks posted in that  department
and  the  overall incharge of the department is       an  officer
under whom   these  clerks   are  functioning.    It       was
specifically  claimed  by  the appellant  that    the  Special
Assistant will be accountable and responsible for running of
the  department/section under          them and their          duties          will
involve         looking after and checking the work of other  clerk
or  clerks  and    sub-staff and will  include  several  other
duties set out in Anneuxre A to the Bi-partite Settlement of

    An affidavit was filed by Jai Bahadur Singh on behalf of
the appellant and it was stated therein as follows :

    That  the  clerk attached to my department amongst          the
other  clerical         duties are on rotation basis sent  to       the
Bankers       clearing  house for delivering the  cheques/drafts
etc   of  our  bank  drawn  on      other  Bank  and   receiving
cheques/drafts       etc drawn by other banks on our bank as      per
the  schedule  which  he  carries  with him  in  duplicate.
Specimen  of which is marked as Annexure A to the affidavit.
Under  the  column  delivered  of   the     said  schedule      the
cheques/drafts       etc.  drawn on other banks and delivered  by
him  at the clearing house are entered bankwise and total is
arrived         at this represents the amount of cheques  delivered
by  the         Bank is clearing.  The cheques delivered  by  other
banks  are entered in the column received of the  schedule
bank  wise and the total is arrived at, this represents    the
amount          of  cheques received.  Thereafter  the          difference
between       the  amount  delivered and received is       arrived  at
which is known as clearing difference.          Thereafter a copy of
clearing  schedule is delivered to the officer in charge  of
the  clearing house.  As such the duties being performed  by
the  clerks attending the clearing house is purely  clerical
in nature.

    The         Tribunal, after setting out the case of the parties
and  the  evidence put forth before it in the shape  of     the
affidavits, stated that though affidavits have been filed by
several         persons, only two witnesses, namely, V.K.Srivastava
and  Baikunth  Lal, were produced for  cross-examination  on
behalf of the workmen and Jai Bahadur Singh on behalf of the
management  and,  therefore,  their   affidavits  alone  are
admissible.  However, the Tribunal chose not to examine that
evidence on the following basis:

    .the concerned workmen have been sent to the Regional
Collection  Centres  of the Reserve Bank of India and  State
Bank  of  India at other places for verification of  cheques
issued          by  their Banks.  It is also not disputed that          when
these  persons went to these centres none of the officer  of
the  bank  had          accompanied.  I am of the view that  when  a
member          of  award staff handles and deals with          cheques      and
other  instruments  within the bank premises and during   the
office hours there is no element of risk and there cannot be
said  to  be doing any work involving extra  responsibility.
However,  the moment such workman is asked to carry  cheques
and the instruments outside the bank as is being done by the
concerned  workmen.   I am of the view          officer        accompanied
them  at  such occasion there would be no responsibility  of
these  workmen.      Hence          since  in  the instance  case   the
concerned  workmen had been carrying cheques  independently,
and checking the same at the Regional Collection Centres and
without        any  officer  accompanying  them,  I  come  to      the
conclusion  that  had  been  performing   the  job  involving
greater responsibility as well.

    Proceeding thus, the Tribunal made the award without any
further examination of the matter.

    In   this  background, it becomes necessary          to  consider
whether        the award made by the Tribunal can be sustained  or
not.   It  is  the contention of the  respondents  that    the
decision  of  this Court in Central Bank of India Ltd. vs.
Sisir Kumar Shaw, 1976 (2) SCC 859, fully covers the case of
the  workmen  in question.  In that decision, it was  stated
that  it  was not necessary to refer to the details  of     the
Sastry          Award  of  1953 or the Desai Award which  ceased  to
apply  in the year 1966, when the Bi-partite Settlement came
into force.  The preamble to the Bi-partite Settlement dated
19.10.1966  states  that  the parties have agreed  that    the
provisions  of      the  award known as the     Sastry          Award          as
modified  by  the  Desai Award shall  govern  the  service
conditions  therein  covered except to the extent  that   the
same  have  been  modified by the Bi-partite  Settlement  of
1966. If that is so, it will not be accurate to state that
the  Sastry Award or the Desai Award has ceased to apply and
this  position is clarified by this Court in C.A.No.7752  of
1996  Bank  of  India vs.  Presiding          Officer        and  Ors.,
disposed  of  on 28.11.2000.  However, that aspect will     not
settle  the  problem  arising  in  the          present       case. The
question for consideration is whether the principles set out
by  this  Court in Sisir Kumar Shaws case [supra] would be
applicable  to the facts of the present case.  In that case,
there  was a specific finding by the Labour Court as to  the
nature of  the duties of the clerk working as the  clearing
house  representative  on behalf of the bank.  While in       the
present        case,  the duties discharged by the clearing  house
representative        are in serious dispute.       Unless the same are
adjudicated  by appropriate examination of the facts of      the
case  with  reference to the contentions advanced by  either
party  and  the evidence adduced, it cannot be concluded  in
the  manner done by the Tribunal.  There is no finding          that
the  workmen  discharge certain duties and,  therefore,     are
entitled  to  special allowance in the category of  Special
Assistant.   The Tribunal has proceeded as if it was dealing
with  a         fresh matter before it without reference either  to
the  Bi-partite Settlement  or to the Sastry or  the  Desai
Award.          Necessarily, the Tribunal had to examine whether the
workmen     in  question fall in any one of the  categories  to
which special allowance is to be given or refused by the two
Awards [Sastry/Desai Awards] or in the Bi-partite Settlement
that  part  has     been  modified or a  new  clause  has          been
introduced  thereto inconsistent with the Sastry/Desai Award
so as to entitle to such allowance.  Unless such an exercise
is undertaken and the details of the duties assigned to each
of  the          workman are considered it will not be possible       for
the  Tribunal to decide a matter of this nature.  Therefore,
we  are         constrained  to  set aside the award  made  by     the
Tribunal  and  remit  the matter to the Tribunal  for  fresh
consideration  in  the light of the observations made by  us
above and in accordance with the law.

    The appeal shall stand allowed accordingly. No costs.





DATE OF JUDGMENT:          17/04/2000

A.P.Misra, M.B.Shah


      Shah, J.

      Leave granted, in SLP (Civil) No.7229 of 1999 which is
filed  against          the Award dated 7th October, 1998 passed  by
Central           Government   Industrial   Tribunal,  Calcutta         in
Reference No.2 of 1992.

      Civil  Appeal  Nos.552-553 of 1994 are  filed  against
judgment  and order dated 2nd September, 1993 passed by      the
High  Court  of Calcutta in Writ  Application  No.________of
1993  deciding          the question  whether the employees of      the
canteens  of  some  of the branches of State Bank  of  India
(hereinafter  referred to as SBI in short) can claim to be
absorbed as employees of the State Bank of India?

      In  the said Writ Application the State Bank of  India
Canteen       Employees Union sought the relief that the  canteen
employees   who   were  ostensibly   employed  by  the  Local
Implementation Committee (LIC for short) as per the scheme
framed          by  the SBI for providing certain amenities were  in
fact  employees   of the State Bank.  It was  contended          that
canteen        facilities are meant for serving tea, meals to       the
employees  of  the bank and the salary of canteen  employees
are  paid  by  the Implementation Committee from  the  funds
created        by the bank for the same.  It was pointed out     that
SBI  and SBI Staff Federation reached an agreement which  is
contained  in  the Handbook of staff welfare activities      and
canteen        facility  is one part of such          welfare        activities,
which  is  looked  after  by the LIC  for  which  funds are
provided  by the Central Board of the Bank as subsidies     out
of its annual profits.          The High Court directed that the SBI
is  bound  to treat them its employees in all the  branches,
where  such  canteens  exist and to treat  them    equally  as
employees  of  the  bank and not to peer at  such  employees
through the opaque curtain of the LIC.

      Further, the   State  Bank   of       India    Employees
Association  (Bengal Circle) for and on behalf of  employees
of  the canteens established in the branches of the bank  on
the  basis  of welfare scheme propounded by the bank  in  or
about the year 1963 raised a dispute for which Government of
India  by order dated September 17, 1975 made a reference to
the Tribunal as under:-

      Whether  the demand of the workmen of the State  Bank
of  India represented by the State Bank of India  Employees
Association,  Bengal Circle, for treating the staff of          such
canteens   which  are  run  by          the   Local   Implementation
Committees,  as      workmen of State Bank of India        for  giving
them the same status, pay and facilities as are available to
other  Class-IV employees of the Bank is justified?  If       so,
to what relief the workmen concerned are entitled?

      The  Tribunal considered that  whether canteen  staff
should          be regarded as workmen of the Bank is a relevant  or
substantial  dispute  between the Bank and its          workmen   and
after          considering  the  various   facts  arrived  at    the
conclusion  that  the canteen employees were workmen of the
bank  and they would be entitled to the same status, pay and
other          facilities  as are   available       to  other  Class-IV
employees  of the Bank and those rights will accrue in their
favour          w.e.f. 01.11.1976.  That award  dated 30.11.1976,
known  as  Justice  Moidu Award, was  challenged  by  filing
appeal          bearing        Civil Appeal No.840 of 1977 in this  Court,
which was admitted and the operation of the Award was stayed
pending hearing and disposal of the appeal.

      Pending appeal, on 31st October, 1977 the Bank and All
India  State Bank of India Staff Federation arrived at first
settlement.   The terms of the settlement inter alia provide
that  the  Bank  will  take over from  the  concerned  Local
Implementation          Committees  at          51   branches  and   offices
mentioned  therein, the management and running of the  staff
canteens  and conduct the same in the manner provided in the
scheme          attached  to  the agreement.   The  settlement          also
provided  that the Bank will provide the canteen staff,  who
will  be appointed and paid by the bank instead of by way of
subsidy.   The agreement further provides for absorption  of
the  canteen  employees   of  the said 51  branches  if        they
qualify         in  an  interview  and found physically  fit  in  a
medical        examination and after verification of character and
antecedents  in       the usual manner.  Thereafter          between      the
same  parties,          a  second  settlement  took  place  on      17th
September, 1984 which inter alia provided that the Bank will
take over from the concerned Local Implementation Committees
at  local  head offices, regional offices and such  branches
having          a  minimum staff strength of 200 where the  canteens
are  still being run by the said committees and conduct the
same  in  the manner provided in the scheme attached to   the

      On  the basis of the aforesaid settlements, the  Civil
Miscellaneous  Petition   No.  39299 of 1985 in Civil  Appeal
No.840          of  1977 was filed before this Court by the  parties
for  disposal  of  the          appeal in terms       of  the  compromise
arrived         at between the parties.  In that application it has
been inter alia stated that two settlements, which have been
reached        between the Management and the Staff Federation  on
31.10.1977  and 17.9.1984 respectively have been acted  upon
and  the  same  are in operation and the  operation  of          the
impugned  Award is stayed by this Court.  It was stated that
under the circumstances, the functioning of the canteens and
the  service  conditions of the canteen employees in  Bengal
Circle were governed by the terms of the aforementioned two
settlements and that the said settlements have been regarded
by the Management as well as the Staff Federation to be fair
and   reasonable  and  in  view of  the  fact          that   these
settlements  have been in operation it was submitted that it
would be in the interest of justice to dispose of the Appeal
in  terms  of  the said settlements in substitution  of      the
impugned  Award.  It was, therefore, prayed that the appeals
be  disposed of in terms of settlements dated 31.10.1977 and
17.9.1984  in  substitution  of the  impugned  Award  dated
30.11.1976  in          Reference  No.63 of 1975  published  in          the
Gazette        of  India  dated 25.12.1976.          Hence,         this  Court
passed          the following order on 14.10.1985 in pending  appeal
challenging Justice Moidu Award:  -

      The settlement is recorded and the appeal is disposed
of in terms of the compromise.

      After  disposal  of the said appeal, it  is  contended
that  the  unabsorbed canteen workers formed union known  as
Workmen    represented  by  the State Bank of  India  Canteen
Employees  Union  in  February,     1988 and  they   filed          an
application  for clarification of the order dated 14.10.1985
passed          by this Court.          That application was disposed of  by
passing the following order:  -

      Learned  counsel          for the applicants states that          the
applicants  shall  raise  their dispute in  the appropriate
forum  and this petition may consequently be permitted to be
withdrawn.   This  application is accordingly allowed to  be

      Thereafter,  a third settlement was arrived at on  9th
January,  1991          between      the Bank and All  India  SBI  Staff
Federation  which inter alia provided that whereas, a review
of  such  provision  of          canteen  facility  under  the          said
agreement  was          undertaken in 1977 and 1984  and  Agreements
dated  the 31st October, 1977 and 17th September, 1984  were
arrived         at  to  the  effect that  canteens  at  Local Head
Offices,  Zonal Offices,  Specified   Branches     and   other
Branches/Offices,  where minimum staff strength was not less
than  200,  would  be taken over by the Bank and  the  staff
thereat         will  be employed by the Bank on full          time  basis.
These          settlements   were  in       affirmation  of  the          said
understanding  between          the  parties  and  with   a  view  to
streamline  the administration and control of canteens taken
over by the Bank.  It was further agreed as per paragraph 48
of  the          minutes of the bipartite discussions held with      the
Federation  on      9th June, 1989 that the Bank will take    over
from  the concerned Local Implementation Committees at       such
offices/branches  having a minimum staff strength of 150  on
that  date,  where the canteens are still being run  by         the
said Committees, subject to the conditions that the existing
premises  at  Branches/offices are considered  adequate      for
establishing  a full fledged canteen and conduct the same in
the  manner provided in the scheme attached to the aforesaid
Agreement  dated  the 31st October, 1977 provided,  however,
that the particulars of canteens to be so taken over and the
date  of  such taking over will be decided mutually  by the
Bank  and  the          Federation  from time to  time.    The  staff
canteens  at  Branches/offices where staff strength is          less
than  150  will continue to be run and managed by the  Local
Implementation          Committee,  as hitherto, and  staff  thereat
will continue to be engaged by such committees on such terms
and conditions as they may decide.

      Subsequently,  a dispute was raised by the State          Bank
of  India  Canteens Employees Union (Bengal Circle) and   the
Government  by      order dated 22.1.1992 made reference to  the
Industrial Tribunal as stated below:  -

      Whether the action of the management of State Bank of
India, Alambazar Branch, in not regularising the services of
the  workman  Shri  Judhisthir Debsena, as  canteen  boy  in
class-IV  cadre of  the bank, and in denying him  the     full
salary for the month of April, 1991 is justified?  If       not,
what relief the workman is entitled to?

      Pending the Reference, 4th settlement dated 2nd April,
1992  was  arrived at between the parties which inter          alia
provided  that Bank will take over from Local Implementation
Committees  concerned  at  such        offices/branches  having  a
minimum staff strength of 100 where canteens are still being
run by the said committees.

      Thereafter,  on refusal by the Bank to absorb rest  of
the  canteen  employees,  a writ petition was filed  by       the
Union  of canteen employees in the High Court at Calcutta on
3.6.1993.   The    learned Single Judge declined to  pass   any
interim         order  and directed the S.B.I. to file  affidavit.
Against        that  order, appeal was filed before  the  Division
Bench  of the High Court.  The parties agreed that the     writ
petition  and  the  appeal be disposed of  together  by      the
Division  Bench.   The Division Bench by its judgment  dated
2.9.1993 held that the writ petitioners being the balance of
the  canteen  workers were entitled to be absorbed  as          Bank

      Against that judgment, the Bank preferred Civil Appeal
Nos.  552 and 553 of 1994 before this Court.  At the time of
hearing         by  order  dated  May 5, 1998,       this  Court  passed
interim direction {(1998) 5 SCC 74} as under:  -

      In  the  circumstances,  taking          advantage  of          the
pendency  of the identical issue in Ref.  No.2/92 before the
Central         Government Industrial Tribunal at Calcutta, instead
of  directing the parties to go before the same Tribunal  in
this  matter as well, to avoid delay and in the interest  of
both   the  parties,  we   direct  the          Central         Government
Industrial Tribunal to expedite the hearing of Ref.  No.2/92
and  render the Award within six months.  The parties  shall
avoid  taking  adjournments.   The party, aggrieved  by      the
Award of the Tribunal to be passed pursuant to the direction
as given above, will be at liberty to move this Court.

      These appeals will be listed after the disposal of the
Reference  by the Central Government Industrial Tribunal  as
aforesaid alongwith the SLP, if any, filed against the Award
of the Central Government Industrial Tribunal.

      In  view of the aforesaid directions, it appears          that
the  Tribunal  expedited  the hearing of  the  reference  in
question.  Preliminary objections were raised by the learned
counsel        for  the  Bank  to the effect that  (1)  since     the
workman     was never engaged by the management, no  industrial
dispute in terms of Sections 2(k) of the Industrial Disputes
Act,  1947  (herein after referred to in short as the  I.D.
Act) exists.  Under Section 2(k) there must be relationship
of  master  and servant between the employer  and  employee;
the  sponsoring Union is neither a union of the employees of
the Bank nor any of the employees of the Bank is a member of
the  said union.  (2) the Union cannot represent any workman
as  it has not sufficient number of members within its          fold
to  give  it  a representative        character.   Against  that,
learned         counsel  for  the  Union contended  that  the          Bank
employees  are also members of the sponsoring Union and when
a  reference is made under Section 10 of the Act there is  a
presumption  of      existence  of an  industrial  dispute.         He
further         contended  that the management should          be  estopped
from  raising this contention of maintainability of the case
inasmuch  as  the management did not take this point  before
this   Court  in  SBIs          case   which  was  pending  in   CA

      After  discussing    the contentions, the Tribunal          held
that it is required to decide the reference both on point of
maintainability as well as on merits.  It held that there is
no relationship of employer and employee between the Canteen
boys  appointed by the Local Implementation Committee  (LIC)
run  canteens  and  the Bank.  The Tribunal dealt  with    the
contention  that  the  Bank has an  obligation          to  maintain
canteens  and  held  that since amenity for canteen  can  be
provided  for  in  various ways  like  through          contractors,
cooperative societies or any independent body without really
maintaining  such canteen by the bank, it cannot be said  to
have  created  any obligation for the Bank to run  canteens.
The Tribunal negatived the contention of the learned counsel
for  the  employees  that in view of Justice  Moidus  award
passed          in  Reference  No.63 of 1975, the canteen  boys  are
direct          employees  of the Bank, hence, the  concern  workman
should          be  held to be an employee of the Bank,     by  holding
that  in that case, compromise was entered into between the
parties, therefore, the award having been substituted by the
settlements,  no  question of the Union claiming  any  right
under the said award can arise.

      Thereafter,  the          Tribunal considering the question
whether there is any similarity between the LIC run canteens
and the canteens run by the Bank - observed that admittedly,
the  canteen  of  those branches of the     Bank  having  staff
strength of 100 and above are directly run by the management
of  the          Bank and the canteens having lessor staff  strength
are  managed by the LIC, formed by some of the staff of        the
Bank alongwith Branch Manager as ex-officio President.          From
the  evidence  on record, the Tribunal found that  the     Bank
provides  canteen  facilities to its employees as  amenities
and  for  that          purpose set up of canteens  is          provided  by
giving          subsidies by the Bank. The canteens are run by          the
LIC  and the Bank has nothing to do with the supervision  or
the  day to day running of the canteens.  The composition of
the  LIC is entirely from the members of the staff with   the
Branch          Manager as Ex-Officio Secretary.  The control of the
Bank,  if  any,   over the LIC is limited  being  its  Branch
Manager,  Ex.          Officio        Secretarys for     accountability        of
proper          utilization  of         the amount paid as  subsidy.          Such
control,  if it can at all be said to be control by the Bank
over  the LIC, being neither effective nor all pervasive  no
question  of the canteen boys, who are employees of the LIC,
being  employees  of the Bank can arise.   Further,  regular
appointment  to any post in the Bank being always  proceeded
by  certain tests of the candidates, the canteen boys cannot
claim  to  be employees as they had not gone  through  those
tests.          Therefore, the canteen boys cannot be said to be the
employees of the Bank.

      The Tribunal further negatived the contention that the
Banks  action in giving appointment to some of the  persons
doing same nature of work on the basis of consideration that
those  persons who are rendering service in bigger  branches
having          the  staff  strength  of 100  and  above  should  be
absorbed,  while those rendering service in branches  having
lessor staff  strength       will  not   be entitled  to          such
regularization,       is  discriminatory.  The Tribunal  observed
that  under Section 46 of the Factories Act it is obligatory
that  canteens          are  to be established where more  than   250
workers       are  employed.    In Section 25 K of  the  Industrial
Disputes  Act, 1947 provisions have been made in respect  of
those  employees working in bigger establishments.  Further,
the  discrimination, even if there be any, being the outcome
of  protracted negotiations between the parties from 1977 to
1991  as expressed in four settlements between the Bank  and
the  Union which represented all employees of the Bank          till
1988  at least, before the sponsoring union was born, ceases
to  be          discriminatory as the elements of give and  take  is
necessary  commitment  in  every amicable  settlement.   The
Tribunal  following the decision in Reserve Bank of India v.
Workmen,  {(1996) 3 SCC 267} held that the employees of      LIC
run  canteens shall not be entitled to the regularization as
there  is  no relationship of employer and employee  between
the  Bank  and the concerned workman.  The Tribunal  further
held  that  the     membership of the  sponsoring          union  being
limited         to persons who are not employees of the bank, as it
transpires  from  evidence,  the   concerned  union  is       not
permitted  under  law to raise an industrial  dispute  under
Section        2(k) of the Act.  The Tribunal also considered   the
decisions  of  this Court Hussainbhai v.  The Alath  Factory
Thezhilali  Union  and others, {(1978) 4 SCC  257};   M.M.R.
Khan  and others v.  Union of India and others, {1990 (Supp)
SCC  191}  and Parimal Chandra Raha v.          LIC of India,  {1995
Supp. (2) 611} and observed that in Hussainbhais case the
Court  considered the position of the contractors employee.
Finally         the Tribunal relied on RBIs case (Supra) and  held
that  unless  there  is        any statutory          obligation  for       the
management  to          provide employment to the canteen  boys,  no
question  of  accepting     them as employees of the  Bank can
arise.  Accordingly,  the Tribunal held that the  concerned
employee Judhisthir Debsona was not entitled to any relief.

      Against that Award of Tribunal, Employees Union filed
special         leave petition before this Court, which was  listed
on  14.5.1999  and  was ordered to be tagged along  with  CA

      At  the time of hearing of these appeals, the  learned
counsel        for  the parties submitted that for deciding  these
matters        following  two    questions would be required  to  be
dealt with by this Court:  -

      (i)  Although,  it  is not a statutory  obligation  to
provide        canteen,  whether it is otherwise an obligation  of
the bank to provide canteen?


      Whether  it has an obligation to provide facilities to
run the canteen?

      It  is  admitted position that in law if there  is  an
obligation  to          provide a canteen, the employees working  in
the  canteen would be employees of the Bank, and if not, the
employees  working in the canteen may not become part of the

      (ii)  Secondly, whether the petition for same cause of
action was  maintainable after the order  dated  14.10.1985
passed          by  this Court in Civil Appeal No.840/1977,  wherein
the  award  passed by Justice Moidu was challenged and    this
Court substituted the said award by passing the order  the
settlement  is          recorded  and the appeal is disposed  of  in
terms  of the compromise on the basis of application  filed
by the parties.

      It is contended that in view of the aforesaid order it
is  not open  to the employees working in  the     canteen  to
re-agitate  the question that they would become employees of
the Bank.

      Mr.   Jaydeep Kar, learned counsel for the  Employees
Union  submitted that the Bank has an obligation to  provide
canteen        facility  on the basis of Sastri Award.   For    that
purpose, he referred to paragraph No.609 of the Sastri Award
dated 26.3.1953.  He also referred to the Hand-book on Staff
Welfare        Activities prepared by the S.B.I.  on 08.8.1963  on
the   basis   of  agreement  between   the  Bank   and    the
representative        of the Staff Federation, which provides      for
Staff  Welfare          Fund and a scheme for creation, conduct       and
accounting procedure of such funds.

      As  against this, Mr.  Shanti Bhushan, learned  senior
counsel for the Bank submitted that neither Sastri Award nor
Hand-book on Staff Welfare Activities provides that it would
be  obligatory          to S.B.I.  to provide canteen facilities  to
its employees.          Sastri Award pertained to disputes raised by
All  India Bank employees Association and was not limited to
State  Bank of India.  The Hand-book prepared by the  S.B.I.
for  the Welfare Scheme of its employees also does not     cast
any such obligation.

      For appreciating the contentions raised by the learned
counsel for the parties, we would refer to the relevant part
of Sastri Award upon which reliance is placed by the learned
counsel        for  the employees.  Chapter begins with Item   No.8
Right  to existing terms of service.  Thereafter, para No.
602 mentions that what was considered was Right to existing
terms  of service where they are more liberal than those  of
the  awards  of      this  Tribunal         and  paras  603  and          604
specifically  deal with the demand of the Unions  affiliated
to  the All-India Bank Employees Association that no rights
as  on          8.4.1951  of any employee shall be  altered  to    the
prejudice  of  the employee concerned including      demands  of
various        associations  of Imperial Bank of  India  employees
with  regard  to the privileges in any          respect       whatsoever.
After considering the contentions in paras 608 and 609 it is
observed  as under:- 608.  If any option is to be given  at
all,  it  should  be  left to  the  exercise  of  individual
discretion of each workman concerned, and in our opinion the
option should be exercised only once.

      609.  The next important question relates to the scope
of  this  option  i.e.,  whether  it  should  be  only   with
reference  to  what  is        called the  totality          of  all the
pre-existing  terms and the totality of all the terms of our
award.         The  workmen  demand  that  distinctive  groups  of
benefits should be recognized and the choice should be given
with reference to each of such groups.          The banks oppose the
splitting  up  of  the          totality of the        terms of  service.
Several        distinctive  groups  in relation  to  the  monetary
benefits,  present  and future, and service  conditions    and
other  amenities do exist.  In our judgment such distinctive
groups          should        be sorted out and a choice should  be  given
with  reference      to the pre-existing terms and the terms  of
our  award  in relation to some at least of the groups         but
taking each of them as one unit.  Even the Banks Counsel had
to  admit  that in evaluating the benefits  of      pre-existing
terms  and the terms of our award there are certain  service
conditions  which  cannot be valued in terms of       money.          We
have  carefully considered the matter of grouping and we are
of  the opinion that the grouping should be on the following

      (1)  Pay, dearness allowance, special allowance, house
rent allowance, and officiating allowance.

      (2) Provident Fund.

      (3) Gratuity and Pension.

      (4) Bonus.

      (5) Leave Rules.

      (6) Working hours and overtime.

      (7) Conditions of service other than working hours and

      (8)  Amenities  e.g.  canteen, club-house   payment  of
taxes etc.

      We  are of the opinion that no option should be  given
in respect of the following groups :

      (1) Leave Rules.          (2) Working hours and overtime.     (3)
Conditions of service other than working hours and overtime,

      (4) Amenities, except as otherwise provided for in our

      We  may in particular make it clear that there will be
no  choice  in respect of the following items  viz.,  other
allowances,  and  medical  relief   except  as          otherwise
provided  for  in  our          award.         In these  matters  also the
awarded terms will apply to all the workmen.

      From  the aforesaid quotation, it is apparent that the
discussion  in the award with regard to the canteen facility
is  not confined  to only employees of the  State  Bank  of
India. Secondly, it deals with the contention that  option
should be given to the employees for opting for pre-existing
facilities  and    the  Award makes it clear  that  individual
option          should        be  given  with regard to items  No.1  to  4
namely,        pay,  dearness allowance and other allowances,  PF,
gratuity  and pension and bonus.  However, no option  should
be  given  with   regard to the service condition  for  leave
rules,          working      hours          and overtime, other  conditions    and
amenities  except  as otherwise provided for in       the  award.
This would not mean that paragraph 609 of the Award cast any
obligation  that  amenities,  such  as          canteen,  club-house
payment       of  taxes  etc.   must be  provided  by  the  Bank.
Learned       counsel  for the appellant failed to point out      any
part  of the Award which makes it obligatory for the Bank to
provide canteen facilities by running a canteen.  Award only
mentions what type of amenities could be or were provided by
various        banks and for that it has been stated that canteen,
club-house  payment  of taxes etc.  would be such  amenities
for  which no option can be given to the employees,  meaning
thereby        if  canteen  facilities  or  other  amenities      are
provided  by the Bank no choice to individual employee is to
be  given because as stated in the award there are  certain
service         conditions  which  can not be valued  in  terms  of
money.        It  nowhere  mentions          that  Banks  shall  provide
canteens  for  its  staff.  Therefore, it  is  difficult  to
accept          the  contention    of  the  learned  counsel  for the
employees that the aforesaid paras cast an obligation on the
S.B.I. for running canteen.

      The  learned counsel for the employees further  placed
reliance  on  Hand-book  on  the  Staff  Welfare  Activities
prepared  by  the S.B.I.  on the 08.8.1963 on the  basis  of
agreement  between the Bank and representative of the  Staff
Federation.  It provides for Staff Welfare Fund and a scheme
for  creation,          conduct       and accounting   procedure  of      such
funds, and the relevant part thereof is as under:

          STAFF WELFARE FUND Creation, Conduct and Accounting
Procedure  (i)      The  Staff Welfare Fund  consists  of  funds
sanctioned  annually  by  the  Executive  Committee  of      the
Central Board of the Bank.  The funds to the extent utilised
are  drawn from the charges account at the end of the  year.
The  funds  are     the  property of  the     Bank  earmarked    for
providing  amenities  to the staff and carrying out  welfare
activities for the employees of the Bank as a whole.

      (ii)  It          is for Central Office to  allocate  suitable
amounts       to  the  various  Circles to be  utilised  for  the
welfare activities in the Circles.

      (iii)  For certain welfare activities organised and/or
conducted at the Central level, separate funds are allocated
by Central Office as per the provisions made.

      (iv) Welfare activities are generally of the following
nature but the list is not exhaustive:

      a) promotion of canteen facilities

      b) provision of libraries and reading rooms

      c)  encouragement     of  sports and games          indoor        and

      d) promotion of cultural activities

      e)  improved medical facilities including      reservation
of beds in hospitals and sanatoria

      f)  establishment         of holiday homes  and          convalescent

      g)  educational facilities  provision of          educational
scholarships  etc.   to sons and daughters of employees   and
reservation of seats in schools

      (v) At each Local Head Office there should be a Circle
Welfare        Committee  to organise, conduct and  supervise     the
welfare activities in respect of offices located in the area
covered       by  the Circle.  One of the main functions  of          the
Circle          Welfare       Committee  will be to          allot  funds  either
generally or activity-wise for the welfare activities in the
offices         located in the area covered by the Circle including
Central Office establishments.      It will also be the function
of the Circle Welfare Committee to satisfy itself that funds
are being utilised properly for the purpose intended.

      (vi)  Local Implementation Committees should be formed
at  each Branch and also at the respective Regional Offices,
Local Head Offices and Central Office establishments & other
offices,  if  any,  to        determine  the     particular  welfare
activity  or activities to be conducted at their  respective
establishments       out  of the funds allocated to them  by      the
Circle          Welfare Committee and within the heads of activities
specified.   Such Local Implementation Committees will be in
charge          of  the          management of the  welfare  activities,  if
necessary,  through  sub-committees  and will  also  suggest
which  consu



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  2. Sir, Bank had conducted the domestic enquiry in flagrant violation of Rules and awarded punishment to charged officer. Fortunately, the IA-1 had recorded the violation of Rules in the enquiry proceedings. Now can the bank be prosecuted for i) criminal acts of suppression of documents indented by defense, ii) Producing tampered bank records by Presenting Officer,
    iii) Not allowing relevant documents indented by defense on the plea 'not relevant' iv) Interrupting the cross examination of PW2 and releasing him from witness stand and declaring the enquiry closed without allowing cross examination of PW2, v) Same issues were subject matter of Criminal case against CSO and he was discharged by CBI court & also High Court but bank has declared the charges as proved by not allowing documents indented or not examining the relevant persons connected with the charges.
    Now is there any remedy available to me?