In SPECIAL LEAVE PETITION (CIVIL) NO. 32554 OF 2018-SC- Employee not entitled to full back wages when there is nothing on record to show whether he was gainfully employed after his dismissal from service: Supreme Court Justices Indira Banerjee & V. Ramasubramanian [22-04-2022]

Read Judgment: ALLAHABAD BANK & ORS v. AVTAR BHUSHAN BHARTIYA 

Tulip Kanth

New Delhi, May 25, 2022:In a case pertaining to the claim of back-wages, the Supreme Court has referred to its propositions enunciated in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) & Ors. and observed that in the first instance, there is an obligation on the part of the employee to plead that he is not gainfully employed. It is only then that the burden would shift upon the employer to make an assertion and establish the same.

The Bench of Justice Indira Banerjee and Justice V. Ramasubramanian  asserted, “Even if we apply the propositions enunciated by this Court in Deepali Gundu Surwase (supra), the Officer-employee may not be entitled to full back wages. This is for the reason that there is nothing on record to show whether he was gainfully employed after his dismissal from service.”

Being aggrieved by an order of reinstatement with 50% back-wages, but all other consequential benefits in full, passed by the High Court of Judicature at Allahabad, the Management of the Allahabad Bank has come up with one Special Leave Petition and the delinquent Officer has come up with the other Special Leave Petition.

 The Officer-employee was first appointed as a Clerk way back in the year 1974. He was promoted to the post of Junior Manager Grade- II in 1982 and to the post of Manager in 1987. In July, 1988 he was issued with a charge memorandum, comprising of 3 articles of charges. A departmental enquiry followed and the Enquiry Officer held the charges proved. After finding that the Report of the Enquiry Officer was not very happily drafted, the disciplinary authority analysed the evidence on record independently and passed an order of penalty of dismissal from service on March 31,1989. Later, the Appellate Authority dismissed the appeal filed by the employee. 

After filing a petition for Review and getting it dismissed, the Officer-employee moved the High Court which was allowed, directing the Management to supply a copy of the enquiry report.The Bank filed a Special Leave Petition and the same was dismissed by this Court. The Bank then sought a review before the High Court but the same also got rejected.

In an interesting twist, the Bank sent a letter to the Officer-employee, claiming that the copy of the enquiry report was not traceable and that he will be free to submit a statutory appeal, raising all issues. Aggrieved by the stand so taken, the Officer- employee filed a fresh Writ Petition which was allowed by the High Court of Judicature at Allahabad, setting aside the order of penalty and directing reinstatement with 50% of the back wages, but with all consequential benefits including post retirement benefits to which he would have been entitled had he not been dismissed from service. 

Then, the  Bank came up with Special Leave Petition and this Court directed the issue of notice in the said Special Leave Petition limited to the quantum of back wages. Thereafter the Officer-employee came up with Special Leave Petition challenging that portion of the impugned order whereby he was deprived of 50% of the back wages. Therefore, this Court ordered the issue of notice in the said Special Leave Petition also and directed the matter to be tagged along with the Special Leave Petition of the Bank.

The Division Bench was of the view that the High Court found that the charges related to a Government sponsored Scheme and that the beneficiaries were identified and were short-listed by a Government agency, namely the District Rural Development Agency. The High Court also found that no bad motive was either attributed to the employee nor proved in the departmental proceedings.

According to the Top Court, on the basis of the aforesaid findings, the High Court could have granted all the reliefs in full, including full back–wages. But considering the fact that from the date of his dismissal namely, March 31,1989, upto the date of his superannuation on February 28,2013, a period of nearly 24 years had passed, the High Court thought it fit to limit the back-wages to 50%. 

In such circumstances,the Apex Court opined that the Management couldnot make out any grievance, especially after having violated Regulation 9; after their failure to point out to the High Court in the first round of litigation that the copy of the enquiry report was not available; and after their inability to comply with the order of the High Court passed in the first round of litigation, which was also confirmed by this Court.On these grounds, the Division  Bench held that the Special Leave Petition filed by the Bank deserved to be dismissed.

The Division Bench noticed that the pleadings in the writ petition would showed that the employee had not pleaded about his non-employment. Though in paragraphs 36 to 38 of his writ petition, the employee has pleaded about the sudden set back to his health in the year 2011 and the financial hardships he was facing, there was no assertion about his non-employment. The employee had his pleadings amended after the dismissal of his appeal during the pendency of the writ petition. Even in the amended pleadings, there was no averment relating to his non-employment.Thus, the Bench did not think that the employee could be granted anything more than what the High Court has awarded.

The Bench noted that the total period of service rendered by the Officer-employee before his dismissal from service, was about 15 years, from 1974 to 1989 and he attained the age of superannuation in February, 2013, meaning thereby that he was out of employment for 24 years. The High Court had taken this factor into consideration for limiting the back wages only to 50% and the High Court had actually struck a balance. Therefore, the Special Leave Petition of the Officer–employee was also liable to be dismissed. Hence, the Bench dismissed both the Special Leave Petitions.