Chairman And Managing Director, ... vs Jasbir Singh Dhillon And Ors.
1991 Latest Caselaw 290 Del

JUDGMENT

M.C. Jain, C.J.

(1) This appeal is directed against the judgment of the learned Single Judge dated 14th December, 1984 whereby the respondent's writ petition was allowed and the order of his retirement dated 29-8-80 was quashed on the ground that on the material available, the Inquiry Officer was not justified in changing the entry recording the date of birth in the service record of the appellant bank. It was further directed that the respondent shall be deemed to be continuing in the service of the bank and he shall be entitled to all the consequential benefits.

(2) We may state a few relevant facts giving rise to the writ petition.

(3) The respondent Shri Jasbir Singh Dhillon in his writ petition challenged the validity of the order of the Punjab & Sind Bank. hereinafter referred to as the Bank (the present appellant) dated 29-8-80, whereby he was retired from service w.ef. 31-8-80. He entered into the service of the bank in 1954 a,s an Apprentice and was appointed as a Clerk in 1955. At 'the time of his retirement, he was the Area Manager at Ropar Branch of the bank. At the time when he entered into the bank service, he had passed Giani Examination from the Punjab University in 1952 and thereafter in 1953, he had passed the Matric examination in English. At the time of joining the bank. service, he gave out his date of bith as 25-8-1935. After joining the bank service, he did his Inter examination in 1954, then matriculation in all subjects in 1958, B. A. (English) in 1967 and B.A. (Final) in 1968. The bank received an anonymous complaint that the petitioner-respondent had not given bids correct date of birth. Thereupon a letter was sent to the petitioner on 4-6-1980 Along with photo copy of the letter received from the Punjab University informing him that his date of birth recorded in the Punjab University in the matriculation certificate is 25-8-25 and that there is apparently a mistake in his date of birth st,ated by him as 25-8-35. The petitioner was required to explain the correct position within 15 days. The letter of the Punjab University to the bank is dated 17-3-80, whereby the University informed the bank that according to the records of the University, one Jasbir Singh Dhillon son of Tara Singh Dhillon had passed the matriculation examination in English only in March, 1953 with Roll no. 2376 as a private student and his date of birth is 25-8-1925. Reply was sent by the petitioner on 6-6-1980 stating therein that the date of birth in the matriculation cei?tificat,e was wrongly mentioned as 25-8-1925 instead of 25-8-1935, and the same D was later on got corrected and the corrected certificate is in his possession which can be produced as and when required. The petitioner then sent a photo copy of the original matriculation certificate to the bank on 12-6-80 and he also took up the matter with the University. The bank required the petitioner vide its letter dated 14-6-80 to produce the original corrected matriculation certificate Along with the correspondence in original on the subject with the university. He informed the bank vide letter dated 19-6-80 that he is producing the original certificate personally to the university on 20^6-80, so, the original certificate is not being produced. Another photo copy of the original certificate was sent to the bank with the letter. The petitioner also informed the bank that it' the bank had. any doubt about his date of birth, it, may verify the facts directly from him without involving the university. He further informed the bank vide his letter dated 11-8-80 that he had handed over the original matriculation certificate on 22-7-80 to the university. Thereafter, the petitioner was served with the order of retirement dated 29-8-80, although the matter was resting with the university. The petitioner filed a civil suit on 30-8-80 in the court of the Senior Sub Judge, Ropar. However, he filed the writ petition on 15-9-80 mainly on the ground that the impugned order was passed without affording any reasonable opportunity to the petitions and without holding any enquiry and in violation of principles of natural justice.

(4) Before stating the case of the bank, we may mention here that there was a difference of opinion regarding admission of the writ petition between the two Hon'ble Judges of this count and the matter was then referred to the third Judge. Thereupon, the same was dismissed in liming. The petitioner preferred Special Leave Petition before the Supreme Court and the Supreme Court granted Special Leave to Appeal on 16-1-1981, and ultimately his appeal was allowed and their Lordships of the Supreme Court vide order dated 29-7-1981, set aside the order of this Court and sent the case back for restoring the writ petition to its original no. and it was observed that the petition should not have been dismissed in liming. The Supreme Court directed this Court to decide the question arising in the writ petition in the presence of the partics. Before the writ petition was dismissed in liming by this Court, on 25-9-1980, the Division Bench of this Court had directed the Punjab University to produce or cause to be produced the entire record in possession of the University in connection with the petitioner's matriculation certificate and its correction. Thereupon, on 3-11-1980, the University produced through one of its officials all the relevant record in its possession and an affidavit of Mr. D. P. Verma, Registrar was also filed and after consideration of the same on reference to the third Judge, the writ petition was dismissed in liming. Along with the writ petition, the petitioner filed the following documents:-

1.Copy of the matriculation certificate (Annexure 2);

2.Letter of the bank to the petitioner dated 4-6-80;

3.Copy of the letter of the University to the bank dated 17-3-80;

4.Copy of the letter of the petitioner to the bank dated 6-6-80;

5.Copy of the second letter to the bank dated 12-6-80;

6.Copy of the letter by the petitioner of he Registrar. Punjab University dated 9-6-80;

7.Copy of the letter dated 11-6-80 by the Registrar to the petitioner informing him that his case is being desalt with and the reply would be sent in due course;

8.Copy of the petitioner's letter dated 12-6-80 to the Registrar;

9.Copy of the letter of the bank to the petitioner dated 14-6-80;

10.Copy of the petitioner's letter to the bank dated 19-6-0;

11.Copy of the bank's letter to the petitioner dated 3-7-80 calling upon the petitioner to produce the original matriculation certificate;

12.Copy of the petitioner's Advocate's letter to the University dated 14-7-80.

13.Petitioner's own affidavit dated 29-10-52 in which date of birth given by him as 25-8-1935;

14.Copy of letter dated 17-7-80 by the University to the petitioner, asking him to submit the original matriculation certificate ;

15.Copy of the letter dated 21-7-80 by the petitioner to the bank;

16.Copy of the letter dated 22-7-80 by the petitioner to the University;

17.Copy of the letter dated 12-8-80 by the petitioner's Advocate to the University ;

20.Affidavit of Smt. Ishwar Kaur, the mother of the petitioner dated 11-8-80;

19.Copy of the letter of the petitioner to the bank dated 11-8-80 informing the bank that the original matriculation certificate has been handed over to the University on 22-7-80 personally and that the matter is now pending with the University.

22.Matriculation certificate of petitioner's brother Mohinder Singh who is said to be elder to the petitioner stating his date of birth as 11-2-1928 and Mohinder Singh's character certificate giving out the date of birth as 11-2-1928.

23.Copy of the letter of the university to the bank dated 30-6-80 informing the bank that the corrected date of birth of the petitioner is 25-8-1925 and the photo copy shows that the date of birth has been tampered with and the petitioner was required that the original matriculation certificate may be submitted.

22.Copy of the petitioner's letter dated) 12-9-80 for the return of the original matriculation certificate if the case is finally decided or to intimate whether the case is still pending for final decision.

(5) In the counter-affidavit filed by the bank, the stand taken is that the petitioner did not give any certificate showing his date of birth at the time he applied to the bank for service. The petitioner was asked by the bank vide letter dated 17-9-57 to produce the matriculation certificate for the purpose of verification of his date of birth and vide letter dated 23-9-57, the petitioner replied that his certificate is not available with him and he enclosed the certificate of Giani and intermediate examination which did not indicate his date of birth. According to the bank, the petitioner alleged in his letter that although he had already shown the Matriculation certificate, but, in fact, the same was not shown to the bank, and even after 1957, the petitioner did not submit his Matriculation certificate or any other authentic or valid proof of his date of birth. When the university informed vide its letter dated 17-3-80, it was found that the date of birth informed by the university is at variance with the declaration made by the petitioner in his original application for appointment. Opportunity was given to the petitioner to give his explanation about the variance in the date of birth. The petitioner was asked to produce the original matricula,tion certificate, but only a photo copy of the original certificate Was produced. The petitioner was asked telegraphically to appear in person and to' bring the original records. The petitioner came on 19-6-80 and met respondent no. 3 and handed over the letter dated 19-6-80 in reply to the letter dated 14-6-80. He was asked by the General Manager to show the original certificate as well as the original correspondence with the university regarding the correction of the certificate. He was also enquired as to who had changed the date and when the same has been done. The petitioner was unable to give a categorical reply and to produce the original certificate and the correspondence and the same was noted by him in his own hand on his letter dated 19-6-1980 in the following words: "THE original correspondence relating to the correction of date of birth in the matriculation certificate issued by Punjab University in the year 1953 is not available with me. Correction was made later on as far as I remember between the year 1954 to 1958".

(6) The University asked the bank vide letter dated 17-6-80 to intimate the date of appointment of the petitioner and the date of birth given by the petitioner, which was replied to on 20-6-80. Bank's case further is that the bank not being satisfied with the evasive and vague replies given by the petitioner, the bank wrote yet another letter dated 20-6-80 to the Punjab University informing that (he petitioner has produced a photo copy of the certificate showing his date of birth having been changed from 1925 to 1935 and the Registrar was requested to verify the genuineness of the alleged certificate as well as the alleged correction thereon. The Registrar then replied vide letter dated 30-6-80, clarifying the whole situation and confirming that the correct date of birth of the petitioner is 25-8-1925 and not 25-8-1935. The note made by the petitioner in his letter dated 19-6-80 extracted above has not been stated by the petitioner in copy of the said letter Annexure 10. The bank's case further is that an opportunity was given to the petitioner and if any further investigation or enquiry is required, the same can be done in the civil suit pending before the senior Sub-Judge. It is also the case of the bank that there is a equity in favor of the bank and according to the bank, the petitioner has tampered with the date of birth in the certificate. It is their further case that after the letter of retirement, the conduct of the petitioner has been unworthy of a Bank officer and his further retention even for a short period is against the interests of the bank. The letter of retirement was received by the petitioner on 30-8-80 and Shri 1. S. Bindra took over the charge of the Area Manager, Ropar from the petitioner. On 1-9-80, when Shri Bindra reached the Area Office, Ropar, about 50-60 persons were standing Along with the petitioner in front of the Area Manager's office. They prevented Shri Bindra from opening the office. The petitioner had broken open the locks and forcibly entered the office unauthorisedly and occupied the chair of the Area Manager. The matter was reported to the police and a case was registered and the petitioner was arrested on 4-9-80. Thus, the conduct of the petitioner was unworthy of a bank officer. In the alternative, it was also prayed that even if the petitioner's retirement is liable to be quashed, there is no case for granting the relief of reinstatement to the petitioner due to his unworthy conduct after receiving retirement notice.

(7) When the matter came up for hearing before Mr. Justice N.N. Goswamy, on 10-5-82, Dr. Anand Prakash, learned counsel appearing for the bank, stated that the Chairman Would like lo reconsider the matter in the light of the material placed before this Court. Thereupon, the matter was adjourned to enable the bank to reconsider the same and Shri Mohinder Singh, Chairman-cum-Managing Director of the bank submitted a report on 24-5-82, concluding that the .date of birth of the petitioner is 25-8-25 and not 25-8-35. The Chairman recorded that there was paucity of time and the date fixed in the case was 25-5-82 and so, he submitted the report on 24-5-82. On 25-2-1982, after considering the report and arguments advanced on that day, the case was adjourned for two months to 28-7-82, and the court directed that in the meantime, the Chairman may call upon the petitioner to produce all such evidence which the petitioner may like to produce and after hearing the petitioner decide the case afresh. It was also stated in the order dated 255-82 that the petitioner will file a proper reply to the show cause notice within 2 weeks and the Chairman will then fix a date for further hearing, Shri Mohinder Singh, Chairman-cum-Managing Director submitted his report dated 15-10-1983 in which he recorded the finding that the date of birth of the petitioner is 25-8-1925 as is evident from the Gazette of the Punjab University from where he has done matriculation in 1953. The correct date of birth of Shri Dhillon is 25-8-25, and the same has never been changed as alleged by Shri Dhillon and the certificate filed does not contain the signature of Dr. Bhupal Singh and are fabricated.

(8) The learned Single Judge after hearing the learned counsel for the parties, found infirmities in the findings arrived at by the Inquiry Officer and so did not agree with the findings and conclusions arrived at by him and held that the correct date of birth of the petitioner is 25-8-1935 and consequently his retirement is invalid. The learned Judge proceeded on the basis that the Inquiry Officer started with an erroneous proposition of law that the burden of proving the date of birth was on the petitioner and that the Inquiry Officer erred in rejecting the entry in the date of birth in the cut-list and erred in ignoring the statement of Shri A. P. Bedi and the Inquiry Officer erred in relying on the opinion given by Mrs. R. K. Vij, handwriting expert as against the opinion given by Mr. N. K. Jain, another handwriting expert. The learned Judge also expressed that the Inquiry Officer erred in rejecting the other evidence produced by the petitioner in the form of electoral rolls, record of life insurance policies, marriage card and the evidence and affidavits of the petitioner's brothers,. mother, father-in-law and neighbours. Their evidence could not be discarded dubbing them as interested witnesses. After weighing the evidence on record, the learned Judge arrived at the finding that there was no justification for changing the entry recorded in the date of birth in the service record of the bank and the petitioner has been wrongly retired before the age of superannuation.

(9) We have heard Dr. Anand Prakash, learned counsel for the appellant and Mr. Janendra Lal, counsel for the University and Mr. R. P. Bhatt, leaned counsel for the respondent-petitioner.

(10) Dr. Anand Prakash. learned counsel for the appellant vehement submitted that the learned Single Judge seriously erred in law in re-assessing and re-evaluating the evidence produced before the Inquiry Officer. The Court could not and should not have entered into the question of appreciation of evidence. The finding arrived at by the Inquiry Officer was a finding of fact based on appreciation of evidence. That finding should not have been interfered with by the learned Single Judge unless the finding was perverse or the finding was otherwise found to be vitiated on account of any legal infirmity substantive or procedural in nature. Dr. Anand Prakash carried us through V the Inquiry Report of the Inquiry Officer and submitted that the Inquiry Officer has considered iiU the material on record and thereafter has arrived at the finding which finding could be legitimately arrived at and as such is not perverse and is not liable to he vitiated for any reason.

(11) We have considered the aforesaid submission of the leaned counsel for the appellant but we do not agree with the same. It appears that the Inquiry Officer in his wisdom primarily concentrated on the evidence relating to correction of date of birth in the original matriculation certificate and as there was no correspondence produced by the petitioner or available with the university leading to correction of the certificate and non- observance of the formalities by the university in connection, with correction of the date of birth in the certificate and non-publication of the correct date of birth in the 'Gazette, and finding that the date of birth in the Certificate is fabricated recorded the finding that the date of birth as appearing originally in the certificate is the correct date of birth and against that date of birth, the other evidence produced by the petitioner cannot be accepted as it consists of the evidence of family members and other near relatives. We may mention that "the probative value of the document and the oral evidence ought to have been taken into consideration. To us, it appears that the evidence other than the evidence relating to the correction of the date of birth in the certificate has been discarded for no valid and strong reasons. A conclusion has to be arrived at from the totality of the evidence which has come on the record and if viewed from that point of view i.e. taking into consideration the totality of the evidence appearing on the record, in our opinion, the finding arrived at by the Inquiry Officer could not at all be reached and in such a situation in our opinion, it can be said that the finding of the Inquiry Officer is perverse and no reasonable man could have reached that particular finding. To us, it appears that what weighed with the Inquiry Officer is as to what was the date in the original matriculation certificate. If satisfactory evidence has not been led for effecting correction in that date of birth, the date of birth appearing in the original matriculation certificate should be taken to be final. It may be stated that the date recorded in the matriculation certificate is open to correction and if the petitioner satisfies by clear, cogent and convincing evidence that the recorded date of birth is not correct, then it can be corrected." So, the whole question is as to whether there is convincing evidence on record to establish that the correct date of birth of the petitioner is 25-8-1935, then the Judgment of the learned Single Judge deserves to be affirmed.

(12) In the Bank's record, the petitioner's data of birth recorded as 25-8-1925. That continued to remain in the record of the bank till the matter came up for consideration in view of the anonymous complaint and the Inquiry being made from the university. This question is disputed between the parties as to whether at the time of initial recruitment, the petitioner had shown the original corrected matriculation certificate. The petitioner's case is that the original was shown whereas the bank's case is that it was not shown. Nor any authentic copy of the corrected matriculation certificate was produced by the petitioner, so the date of birth of the petitioner remained unverified. It is significant to note that in the year 1952, when the petitioner appeared in Giani Examination, he gave out his date of birth as 4-8-1935. What is material is that the year and the month given by the petitioner is August, 1935. In the cut-list record of the university, the year 1935 finds menion. That was the first entry in the university record. It is true that for the purposes of date of birth entry relating to date of birth in Giani Examination may not be material. The date of birth may be furnished by candidate or may not be furnished for the Giani Examination. It is also true that dates of birth do not find mention in case of all the candidates in the cut-list. But on that basis, entry of those candidates who have given their date of birth which finds mention in the cut-list, cannot be said to be having no evidentiary value. The entry of date of birth in the cut-list must be based on the date of birth given out by the petitioner. Having once given that date of birth, a does not stand to reason that the petitioner would have given such date of birth according to which he would become .10 years older. The University has not produced the original application form.

(13) Besides that, the petitioner has produced an affidavit dated 29-10-52 in which he has given his date of birth as 25-8-1935.

(14) Viewed in the light of this affidavit which is of 1952, it does not stand to reason that in 1953, the petitioner would have giv'en out his date of birth as 25-8-1925. We agree with the view of the learned Single Judge that the Inquiry Officer was wrong in rejecting the cut-list holding that it has no evidentiary value.

(15) The most material evidence consists of the statement of Mohinder Singh. He is the elder brother of the petitioner. His date of birth is 11-2-1928. In order to prove his date of birth, he produced his matriculation certificate issued by the University of Punjab (Annexure-20) and the character certificate issued by Ram Garia Higher Secondary School, Armritsar. Both these documents record Mohinder Singh's date of birth as 11-2-1928. He is the eldest son is further sworn in by the petitioner's mother. It is true that her statement with regard to dates of ' birth of all her sons cannot be of much value as she is an illiterate lady but her affidavit at least to this effect can be believed that Mohinder Singh is the eldest son and the petitioner is her second son. In her affidavit, she has categorically deposed os to who is the eldest, who is second who is third and who is ihc fourth son. Mother can be the best witness to depose as to who was bora first ami in what succession sons were born. There can be no reason to disbelieve her statement which is corroborated by the other material and evidence on record. Simply because the surname Dhillon does not appear in the certificate of Mohinder Singh, there is no reason to doubt has identity. 'Mohinder Singh has also stated that he has 5 sisters, two were elder To him although he has .not given the dates of birth of his two other younger brothers and all the sisters but as regards the age of Shri J. S. Dhillon, the pstitioner, he has stated that he is younger to him and he was born .in August, 1935. There is ample evidence on record consisting of Hardeep Singh's affidavit, Manjit Singh's affidavit, a.nd those of two brothers of the petitioner, wherein they have deposed that Mohinder Singh is the eldest brother and Ja.sbir Singh is elder to them. Mohinder Singh was a. Senior Engineering Assistant of All. India Radio, Delhi. The. affidavit of these two brothers cannot be ignored simply on the basis that being brothers, they are interested. Ii is only near relation who can depose about the relationship as well as about the fact as to who is elder and who is younger. Hardeep' Siagh's Higher Secondary certificate and Manjit Singh's matriculation certificate have also been produced on record showing their dates of birth as 11-8-1943 and 21-1-1945 respectively. Their dates of birth are only relevant with a view to find out as to how much they are younger to Jasbir Singh. One neighbour Ant Singh has also deposed that Mohinder Singh is elder to Jasbir Singh. Similar is the statement of Kuadan Singh. the father-in-law of Jasbir Singh. The only ground for rejection of the entire oral evidence establishing the fact that Mohinder Singh is eider to the present petitioner is that they are family members and near relations co they are highly interested. In our opinion, this can be no "round to di?.;cai'd their evidence. Their probative valve can be judged in the light of the matriculation certificate of Mohinder Sin?h. In the light of the matriculation certificate of Mohinder Singh clipped with the oral evidence establishing that fact. we hold that Mohinder Singh is elder to Jasbir Singh and his date of birth is 12-2-1928. This can .further be viewed in the light of the other material which has been placed on record by the petitioner. The petitioner lias produced the electoral rolls of 1965 and 1971 though for correct date of birth, much reliance cannot be placed on the entry in the electoral rolls but they do throw light as to who is shown to be elder to whom. In the 1965 electoral rolls; the age of Mohinder Singh is entered as 36 and that of Jasbir Singh as 32. In tbs electoral roll of 1971, Mohinder Singh's age is show as 42 and that of Jasbir Singh as 38. The invitation card of the marriage of younger brother Hardeep Singh has also been produced in which the name of Mohinder Singh appears first and there after the name of Jasbir .Singh Dhillon appears. Thih. also shows that Mohinder Singh is elder to Jasbir Singh. It is customary that names are printed in the order of age. These documents by themselves individually may not be of much value but if they are viewed in the light of the other evidence on record, oral and documentary, they do go to indicate that Mohinder Singh is elder to Jasbir Singh and once it is found that Mohinder Singh, is elder to Jasbir Singh, and his date of birth ^ 11-2-1928, there is no escape from the conclusion that 25th August, 1925 cannot be his date of birth. It will be some date only after "928. Viewed from this angle, It cannot be found that the date recorded in the matriculation certificate of the petitioner is the correct date of birth. So far as the petitioner is concerned. Lic Certificate has also been produced and proved by him which also given out the. date as 25th August, 1935. In the light of the above material and evidence on the record, the finding recorded by the Inquiry Officer was against the weight of the evidence on record and in our opinion, such a finding could not at all have been arrived at.

(16) As regards the evidence relating to correction of the date of birth in the matriculation certificate of the petitioner, the Inquiry Officer has recorded the finding that the correction is a fabricated one. This finding has been arrived at relying on the testimony of the hand-writing expert Mrs. R. K. Vij. and comparison made by the Inquiry Officer himself of the disputed signatures with the specimen signatures and further reliance has been placed on the evidence of the Assistant Registrar Shri Luthra. In connection with the evidence relating to the correction of the date of birth in the matriculation certificate, it is true tint the correspondence leading to the correction has not come on record and the statement of the petitioner in the absence of that record may not be worthy of credence but from the side of the petitioner. A. P. Bedi, Personal Assistant to the then Registrar. Dr. Bhupal. Singh, has been examined and he has deposed that the signature on the corrected certificate appear to be of the Registrar and the petitioner has also examined handwriting expert. No definite opinion in our view can be recorded as to whether the signatures of the Registrar Lave been fabricated. Although there were no rules but in view of the evidence of Shri A. P. Bedi, as well as Sbri Luthra. it can be taken that the University was following the same practice as is provided in the regulations relating to the correction of date of birth but the petitioner has offered an explanation that he received the corrected matriculation certificate by the Registrar and he was not aware whether the practice and procedure prevalent for correction of the date of birth was followed by the University or not. According to the practice and procedure, the corrected date of birth is also to be notified in the Gazette but the same was not notified in the case of the petitioner after the matter being processed at the various levels of the University. Be that as is may, in our opinion, no clear and definite finding can be arrived at the light of the evidence produced on record that the signatures of Bhopal Singh are fabricated. That apart, what is be seen is as to what is the correct date of birth of the petitioner. In ihe light of this evidence on record which we have discussed above, we are clearly and firmly of the opinion that the correct date of birth of the petitioner is 25-8-1935 and we agree with the finding arrived at by the learned Single Judge.

(17) Dr. Anand Prakash submitted that the learned Single Judge proceeded on the basis that the Inquiry Officer started with an erroneous proposition of law that the burden of proving the date of birth was on the petitioner, and this has resulted in serious prejudice to the petitioner. In connection with this submission, suffice it to say that the question of burden of proof loses all its significance and the finding has to be arrived at on the basis of the evidence and material on record. The other submission of Dr. Anand Prakash is that the petitioner's version is not worthy of credence as he has not consistently given out the version as to when the correction was got made. In the letter addressed to the bank. the petitioner came out with the version that be got the correction made between 1954 to 1958 whereas at a later stage in his statement, he has stated that it was got done in the year 1953. This discrepancy in our opinion is not of much consequence.

(18) It is next urged by Dr. Anand Prakash, learned counsel for the appellant that having regard to the conduct of the petitioner, it would not be proper to reinstate the petitioner. Award of lump sum amount would be reasonable in the case of the petitioner. The petitioner has still time to serve till the date of superannuation in 1993 and normally in cases of wrongful retirement, the appropriate relief may be reinstatement with back wages and consequential benefits. The petitioner did not behave as a responsible officer as averred by the bank it its counter. Besides that the petitioner lias already got himself enrolled as an Advocate and has been practicing. Having regard to these facts, according to Dr. Anand Prakash the appropriate relief which may be granted to the petitioner ought: to be a reasonable lump sum. Reliance has been placed on a decision oi the Supreme Court in Workmen of Bharat Fritz Werner (P) Ltd. v. Bharat Fritz Warner (P) Ltd. and another. , wherein reference has been made to Western India Automobile Association v. Industrial Tribunal, Bombay, 1949 Fcr 321- (AIR Industrial Tribunal, Bombay, 1949 Fc 111) (2) and Punjab National Bank Ltd. v. Its Workmen Air 1950 S.C. 160. (3) in that case. their Lordships of the Supreme Court has laid down as under : "IT is obvious that no hard and fast rule can be laid down in dealing with this problem. Each case must be considered on its own merits, and, in reaching final decision and attempt must be made to reconcile the conflicting claims made by the employee and the employer. The employee is entitled to security of service and should be protected against wrongful dismissals, and so the normal rule would be reinstatement in such cases. Nevertheless in unusual or exceptional cases the tribunal may have to consider whether, in the interest of the industry itself, it would be desirable or expedient not to direct reinstatement. As in many other matters arising before the industrial courts for their decision this question also has to be decided after balancing the relevant factors and without adopting any legalistic or doctrinaire approach."

(19) Their Lordship approved the following observations of the Full Bench of Labour Appellate Tribunal "BUT in so ordering the tribunal is expected to be inspired by a sense of fair play towards the employee on the one hand and considerations of discipline an the concern on the other. The past record of the employee, the nature of his alleged present lapse and the ground on which the order or the management is set aside are also relevant factors for consideration."

It was further observed as under : "REINSTATEMENT has not been considered as either desirable .or expedient in certain cases where there had been strained relations between the employer and the employee, when the post held by the aggrieved employee had been one of trust and confidence, or when, though dismissal or discharge was unsustainable owing to some. infirmity, in the impugned order, the employee was found to have been guilty of an activity subversive or prejudicial to the interests of the industry. [Hindustan Steel Ltd. v. A. K. Roy ]. Inches where itself that it will riot bs desirable or expedient fo direct reinstatement the workman is compensated monetarily by awardmg; compensation in lieu of reinstatement for loss of future employment."

(20) Reliance has al'-o been placed on another decision of the Supreme Court in U.P. State Road Transport Corpora'tion v. Muniruddin, . Tn that case. the respondent Muniruddin had already reached the age of superannuation and. th- suit was decreed by the High Court with future pay and allowances in 1981 and respondents were dismissed some 25 vears npo. which order was set aside. In those circumstances their Lordships directed compensations to be paid to the respondents.

(21) Dr. Anand prakash submitted before taking any decision of retirement by the bank, an opportunity was given to the petitioner. The petitioner should have submitted all relevant material to the bank at that time and the bank would have been in a position to consider the correct date of birth of the petitioner, but the petitioner simply relied on the corrected matriculation certificate of which only the photostat copy was produced and even the original was not produced. The bank's consideration was genuine bonafide and objective taking into account the information furnished by the university. So, to some extent, the petitioner himself contributed to the passing of the order of retitrement. When such is the situation, lump sum payment would be reasonable and in support of this submission, reference may be made to Pyare Lal Sharma vs. Managing Director and others, . It bag been held in this case that when there is reinstatement, normal rule is granting back wages and consequential benefit but it was departed in this case in view of the fact that the concerned employee equally contributed to the passing of the dismissal order against him and 60 per cent of the back wages was directed to be paid.

(22) Reference has also been made to O. P. Bhandari vs. Indian Tourism Development Corporation Ltd. and others , Sant Raj and another v. O. P. Singh and another, , Naval Kishore v. M/s Darbshaw B. Cursetjee's Sons and others .(9)

(23) Mr. R. P. Bhatt. learned counsel for the petitioner/ respondent submitted that the petitioner is entitled to all back wages and also reinstatement as be has still time to serve till the age of superannuation. On the basis of the alleged conduct of the petitioner, this relief of reinstatement should not be denied to the petitioner. He also placed reliance on some case law. It may be stated that in case of setting aside of the orders of dismissal or retirement or retrenchment, reinstatement is the normal relief with back wages and consequential benefits. But having regard to the allegation raised against the petitioner, and his failure to produce all relevant material before the Bank at the relevant time and having regard to the fact that the petitioner has already pot himself enrolled sometime back and is practicing as an Advocate, in our opinion, it would be appropriate to grant lump sum amount as against the petitioner's claim relating to salary and other benefits which he would have drawn had he continued to be in service. Parties have submitted their statements as to what salary and other benefits the petitioner would have drawn. The statements are at variance. In any case, in our opinion, it would be appropriate to award 60% of the salary, allowances and other benefits payable to the petitioner. Accordingly, this appeal is partly allowed. We affirm the order of the learned Single Judge except that we set aside the order of reinstatement. Instead of granting him relief of reinstatement, we order and direct the appellant to pay 60% of the salary, allowance and other benefits payable to the petitioner. Quantification of 60% amount shall be made in execution and compliance of this judgment.

(24) Parties to bear their own costs throughout.