Bishamber Lal Kapur vs Allahabad Bank And Ors.
2002 Latest Caselaw 11 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner is aggrieved by the denial of back wages and other perks to him for the period from 1.6.1984 to 10.5.1993 by the respondent on the ground that he was gainfully employed and had alternate sources of income during this period.

2. The dispute between the parties has a chequered history. The petitioner was employed with the respondent bank in Middle Management Grade Scale II, when on 1.6.1984 petitioner was dismissed from service on charges of falsification of accounts for an amount of Rs. 72,449.10. The petitioner had deposited this amount without prejudice to his pleas and subject to holding of an inquiry. The bank treated the deposit as an admission of guilt and dismissed him from service. This order of dismissal was challenged by the petitioner before the Appellate Authority and the same was dismissed.

3. Aggrieved by the dismissal of the appeal the petitioner filed CW No. 2513/1984 which was disposed of on 21.2.1992 by the learned Single Judge directing that fresh disciplinary inquiry should be held by giving full opportunity to the petitioner to present his case and participate in the proceedings. However, learned Single Judge provisionally maintained the dismissed order pending the fresh departmental proceedings. The petitioner aggrieved by the said order filed a Latters Patent Appeal No. 33/1992 on the ground that once the order of dismissal of the petitioner has been held to be bad in law, the result was that there was no master and servant relationship between him and the bank and thus no disciplinary proceedings could be held. The petitioner was also aggrieved by the second direction of the learned Single Judge whereby the dismissal order was provisionally maintained, pending afresh departmental proceedings. No interim in order was, however, granted to the petitioner.

4. Fresh departmental proceedings were initiated and the petitioner was dismissed from service by a fresh order of 10.5.1993. The LPA came up for hearing on 9.11.1995 and the Division Bench of this Court was pleased to set aside the dismissal order against the petitioner earlier made and directed reinstatement of the petitioner subject to the petitioner's challenging the fresh order of dismissal. The Division Bench considered the question of the claim of the petitioner for the back wages for the period from 1.6.1984 to 10.5.1993. It would be relevant to reproduce the operative portion of the order of the Division Bench:

"Then the next question is whether the appellant is entitled to back wages for the period from 1.6.84 to 10.5.93. So far as right to recover back wages beyond 10.5.93 is concerned, the same is dependent upon whether he will succeed in having the fresh order dated 10.5.93 set aside. But so far as the period from 1.6.84 to 10.5.93 is concerned we declare that the appellant is entitled to back wages unless of course he was otherwise gainfully employed. Parties have not addressed themselves to this question. We, therefore, direct an inquiry into the question of back wages for the said period i.e. as to whether the appellant was gainfully employed during the period 1.6.84 to 10.5.93. This inquiry will be conducted by the Disciplinary authority. It shall give a show cause notice to the petitioner in his behalf within six weeks from today, giving four weeks time to the petitioner to submit his explanation. On the basis of the said explanation and after conducting an inquiry in which the appellant will be given an opportunity of hearing. The disciplinary authority will decide whether any amount is due to the appellant towards back wages for the said period and if so, what amount. The said decision will be given in a period of three months from the date of submission of the explanation by the appellant. If any, amount is found to be due to the appellant towards back wages as aforesaid, the same will be paid to the appellant within one month of the date of decisions."

(emphasis supplied)

5. The respondent bank further preferred Special Leave Petition before the Supreme Court which was dismissed on 22.1.1996 and the time for concluding the inquiry was extended by six months from the date of the order.

6. As a result of the aforesaid orders a notice was issued to the petitioner on 24.2.1996 to advise the bank whether the petitioner was painfully employed during the relevant period. Reply was sent by the petitioner on 2.3.1996 categorically stating that neither he was gainfully employed nor he was doing any business and further sought to rely on the affidavit dated 21.12.1995 which was sent to the bank earlier. The petitioner was thereafter asked to produce certain documents vide letter dated 16.4.1996 and even thereafter on 2.5.1996. This was followed by a personal, interview with the Presenting Officer where series of questions were asked from the petitioner in respect of his prissible source of income, the income of his wife and of his son. All the material was thereafter placed before the Disciplinary Authority.

7. The Disciplinary Authority vide an order dated 28.6.1996 came to the conclusion that the petitioner had substantial earnings through gainful engagement/employment during the period he was not in service with the bank and was thus not entitled to back wages. The petitioner is aggrieved by this order.

8. Mr. Sharma, learned counsel for this petitioner has urged that the Disciplinary Authority abdicated its role to the Presenting Officer and conducted the inquiry contrary to the directions contained in the order of Division Bench dated 9.11.1995 inasmuch as there was specific direction that the inquiry was to be conducted by the Disciplinary Authority.

9. Learned counsel for the petitioner has urged that the approach of the Disciplinary Authority was contrary to well settled principals of law inasmuch as the burden lay on the bank to show that the petitioner had alternate sources of income in view of the categorical denial of the petitioner. Learned counsel has further urged that it is the petitioner's earning which have to been seen and not that of his wife and son even though a consolidated chart of income was filed showing the income of his wife and of his son at page 380.

10. Learned counsel for the petitioner has referred to the judgment of the learned Single Judge of this Court in Ishwar Singh v. Delhi Transport Corporation, 1998 V AD (Delhi) 84, where it was held that burden of proof that employee was gainfully employed during the interval period of his dismissal and reinstatement lay upon the employer. The learned Single Judge referred to the judgment of Supreme Court in M/s. Hindustan Tin's Works Pvt. Ltd. v. The Employee of M/s. Hindustan Tim Works Pvt. ltd. and Ors. and Shambhu Nath Goyal v. Bank of India and Ors. 1984 (1) SLR 212 in support of the said propositions. Learned counsel also referred to the judgment of the learned Single Judge of Punjab and Haryana High Court in Karnail Singh v. State of Punjab and Ors. reported in 1981 (1) SLR 606, holding that on the failure of the employer to discharge onus of proving that an employee remained gainfully employed during the period when his services were under termination would entitle the workman to full back wages for the period when his service remained terminated.

11. Mr. Dhruv Mehta, learned counsel for the respondent, on the other hand contends that the Disciplinary Authority took all the material into consideration in arriving at a conclusion and such an inquiry is not to be examined on the yard stick of civil proceedings. Mr. Mehta further contends that once the Disciplinary Authority has taken all the material into consideration and arrived at a conclusion it would not be appropriate for the Court to interfere with the same and exercise its powers under Article 226 of the Constitution of India.

12. Mr. Dhruv Mehta, learned counsel for the respondent, has referred to the judgment of the Supreme Court in PGI of MF and Research v. Raj Kumar, in Civil Appeal No. 6576/1999 decided on 2nd November, 2000 and reported as 2001 (1) Services Cases Today 326, wherein it was held that in any dispute under the Industrial Disputes Act, 1947, while dealing with the issue of quantum of backwages, writ of certiorari cannot be issued on the ground that the relevant and material evidence before the Labour Court was insufficient or inadequate, though perversity of the order would warrant intervention. Mr. Mehta also referred to the judgment of the Supreme Court in Indian Oil Corporation v. Ashok Kumar, , to advance his submission that the High Court should not interfere with the finding of the Disciplinary Authority and exercise its powers under Article 226 of the Constitution of India.

13. I have heard learned counsel for the parties at length. There is no doubt about the proposition that the High Court while exercising powers under Article 226 of the Constitution of India in respect of departmental proceedings does not act as a Court of Appeal and should not interfere with the orders of Disciplinary Authority unless the order is found to be perverse or is vitiated by illegality such as absence of natural justice. The question however remains that the Court has still to examine the approach of the Disciplinary Authority within those parameters.

14. Insofar as the first grievance of the learned counsel for the petitioner is concerned in respect of the interview with the Presenting Officer. Mr. Mehta, learned counsel for the respondent contends that no grievance of the same was made before the Disciplinary Authority. There is force in the contention of Mr. Mehta in this behalf, as the purpose of the interview with the Presenting Officer of the petitioner was to get information in respect of the earnings of the petitioner. This interview along with all documents of the petitioner were placed before the Disciplinary Authority, which had the occasion to examine the same and even put certain questions to the petitioner. Thus the disciplinary proceedings cannot be stated to be vitiated on account of the procedure adopted before the Disciplinary Authority being contrary to the directions of the Division Bench in the latters patent appeal.

15. The main issue for consideration remains whether the order of Disciplinary Authority suffers from perversity and illegality so as to cal for interference. In my considered view the impugned order suffers from these infirmities which calls for interference of this Court in the present proceedings. It may be stated here that the Disciplinary Authority appears to have a presumed that the petitioner had an alternate source of income and that thereafter the burden lay upon the petitioner to show as to how and in what manner he did not have the earning capacity. This approach is fallacious. Not only this the Disciplinary Authority seems to have been weighed down with the issue of earning capacity of the wife and the son. In the impugned order itself a detailed chart has been produced in respect of the income of the wife to show that the life style would not have been sustained with this income. Mr. Mehta, learned counsel for the respondent, has sought to support this order on the ground that son of the petitioner at such young age was not capable of running the business and was just a front for the father. I am afraid that the respondents have filed to establish that the son was not working or was carrying some other business while the business in question was in fact carried on by the petitioner under the garb of his son. During the inquiry questions were put to the petitioner which have been categorically answered that the business was carried on as sole proprietorship of his son who was a tenant of the property in question and that the petitioner had nothing to do with it. The fact that the petitioner was sitting at shop will not attribute any income to the petitioner.

16. The fact that the petitioner travelled abroad seems to have also weighed with the Disciplinary Authority. Petitioner took the stand that he did not incur the expenses but he same were incurred by his brother-in-law. The Disciplinary Authority did not take any other steps as it deemed appropriate to make further enquiries from third persons regarding this aspect. In fact the complete inquiry has proceeded on the basis of the interview of the petitioner with the Presenting Officer and the documents produced by the petitioner himself. The approach of the Disciplinary Authority can be gauged from the following observations in the impugned order:

"Shri Kapoor has failed to provide any documentary evidence that the expenses incurred on traveling and purchase of foreign currency were by third parties. Alternatively, I have no option but to conclude that all these expenses were met by Shri Kapoor himself. The heavy expenditure on these trips is an Indication beyond doubt that the finance came from the resources beyond his wife's salary income and savings there from.

Further, a person claiming to survive on the charity of his relatives and his wife's income cannot afford to visit Singapore and Kabul for sight seeing which again involves a sizeable expenditure. The aforesaid position again find me to conclude that Shri Kapoor has source significant source of earning during the relevant period."

"Further taking into account the gross salary income an deductions made there from besides investments in NSC/ Fixed Deposit/ RD Accounts, it is observed that the net cash in hand was not adequate to meet the average monthly expenses stated to be in the range of Rs. 2000/- to Rs. 2500/-. The negative position emerging during the financial year 1988-89 indicate beyond doubt that Shri Kapoor was not dependent on his wife alone for maintenance at all. The installation of a telephone and an Air-conditioner at his residence speak itself of his fabulous style of leaving leading to a positive conclusion that the expenditure on subsistence/maintenance was much beyond the stated average expenditure between Rs. 2000/- to Rs. 2500/- per month. This indicate that Shri Kapoor was in receipt of income during the period to take care of such expenses.

A person having such a fabulous living style and making substantial investments of his wife's income cannot be deemed to enduced on the charity of his relatives. Hence, I do not agree with his contention about financial help from relatives. I find that Shri Kapoor was dismissed from the bank's service at a young age of 35 years. He was dismissed for his fraudulent acts, depicting that he has a fertile brain. He is found enjoying good health idle. Further such a person will not like to suffer from social and religious humility and stigma of being dependent on his wife.

The son of Shri Kapoor is found to have commenced his business at a young age of 18 years at a place located in hot business centre at Ludhinana. Taking into account the investments made in the business, I cannot afford to ignore that the scarcity of accommodation in the hot business centre has held to unhealthy practice of acquiring them against payment of heavy sums as agree/ premium. The young age of his unexperienced son indicate that the total show was a brain product of Shri Kapoor exclusively. All the resources for the business were by him and his wife only."

17. On the basis of the aforesaid approach the Disciplinary Authority came to the conclusion that the petitioner had an alternate source of income. This is contrary to the legal position and thus there is a force in the contention of the petitioner that the approach adopted by the Disciplinary Authority was contrary to law. The ratio of judgments in Iswar Singh's case (Supra) and Karnail Singh's case (Supra) would thus apply to the facts of the present case. The mere fact that the impugned order is an elaborate order ant he disciplinary authority has gone into depth while examining the accounts of the petitioner would not be a good ground to sustain it in view of the fallacious approach of the Disciplinary Authority which has resulted in perversity in findings. The Disciplinary Authority seems to proceed on the basis that the petitioner was guilty of falsification of the account; he is unreliable person and must be having business and alternate source of income; the petitioner must establish that he was not working and did not have alternative source of income; and presumed the state of affair which in fact had to be established by the respondent in case the petitioner had to be denied the backwages. The respondents failed to gather material or discharge the burden of establishing that the petitioner had alter-nate sources of income. A finding on this issue cannot be based on surmises and conjectures as is sought to be done by the disciplinary Authority.

18. The order of the Division Bench in LPA 33/1992 clearly states that insofar as the period from 1.6.1984 to 10.5.1993 is concerned the petitioner would be entitled to backwages unless of course he was otherwise gainfully employed. It was on this issue that the Disciplinary Authority was directed to enquire and come to a finding.

19. The view of the aforesaid facts the order of the Disciplinary Authority is liable to be set aside as it is perverse and contrary to law. The result is that the writ petition is allowed. The petitioner is held entitled to backwages and consequential benefits for the period from 1.6.1984 to 10.6.1993 since the respondent has failed to establish that the petitioner was gainfully employed having alternative sources of income. This payment should be remitted to the petitioner by the respondents within a period of six weeks from today.

20. The petitioner shall also be paid Rs.5000/- towards costs by the respondents.

21. At this stage Mr. Mehta, learned counsel for the respondent, contends that in view of the finding of the Court that the approach of the Authority is contrary to law the matter should be remitted afresh to the Disciplinary Authority. The matter relates to the period of 1.6.1984 to 10.5.1993. The respondent had appointed the Disciplinary Authority which had ample opportunity to deal with the issue but, in my considered view, failed to do so in accordance with law. The material which has been produced and examined by the Disciplinary Authority could not have led to a conclusion that the petitioner had alternate source of income. In view of the same I am not inclined to remit the matter back to the Disciplinary Authority.