Allahabad Bank And Ors. vs Bishamber Lal Kapur
2002 Latest Caselaw 1634 Del

JUDGMENT

S.B. Sinha, C.J.

1. This Letters Patent Appeal arises out of a judgment and order dated 04.01.2002 passed by a learned Single Judge of this Court in C.W.P. No. 2550 of 1998 whereby and whereunder the writ petition filed by the respondent herein against denial of back wages and other perks to him for the period from 01.06.1984 to 10.05.1993 by the appellants herein on the ground that he was gainfully employed and had alternate source of income during the said period, was allowed.

2. This case has a chequered history.

The respondent herein was employed with appellant Bank. He was dismissed from service purported to be on the ground of falsification of accounts in respect of an amount of Rs. 72.449.10 by an order dated 01.06.1984. He deposited the said amount without prejudice to his rights and contentions in the inquiry, which was to be held against him. The appellant Bank treated the said purported deposit to be an admission of guilt on his part and dismissed him from service.

Aggrieved by the said order of dismissal, the respondent preferred an appeal before the appellate authority, which was also dismissed. He, thereafter, filed a writ petition questioning the said order, which was registered as C.W.P. No. 2513 of 1984. By a judgment and order dated 21.02.1992, a fresh disciplinary inquiry was directed to be held upon giving full opportunity to the respondent herein to present his case in the said proceedings. Provisionally the said order the dismissal was maintained pending the fresh departmental proceedings. Aggrieved by the said order, the respondent herein filed a Letters Patent Appeal, which was registered as LPA No. 33 of 1992. During pendency of the said LPA, fresh departmental proceedings were held and fresh order of dismissal from service was passed on 09.11.1995. The aforementioned LPA came up for hearing on 09.11.1995 and the Division Bench of this Court was pleased to set aside the order of dismissal against the respondent herein and directed his reinstatement subject to his challenging the fresh order of dismissal. It was held:-

"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 for 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 book 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 decision." (emphasis supplied)

3. A Special Leave Petition, filed before the Supreme Court by the appellant Bank thereagainst, was dismissed by an order dated 22.01.1996. However, time for concluding the inquiry was extended by six months from the date of the order.

4. Pursuant to or in furtherance of the aforementioned order, the respondent herein was served with a notice to show cause as to whether he was gainfully employed during the relevant period and in reply thereto he categorically stated that neither he was gainfully employed nor was he doing any business wherefor he sought to rely on an affidavit dated 21.12.1995. He thereafter was asked to produce certain documents vide letters dated 16.04.1996 and 02.05.1996 followed by a personal interview with the Presiding Officer wherein a series of questions were asked to him in respect of the possible sources of income of the respondent, his wife and his son.

5. By an order dated 28.06.1996, the disciplinary authority came to the conclusion that the respondent had substantial earnings through gainful engagement during the period he was not in service and was, not entitled to back wages.

Thereafter, a writ petition was filed by the respondent herein against the said dated 28.06.1996. By reason of the impugned judgment dated 04.01.2002, the learned Single Judge held that the order of the disciplinary authority is perverse and contrary to law and on the said ground the said writ petition was allowed.

6.Mr. Dhruv Mehta, the learned counsel appearing on behalf of the appellants, would submit that the learned Single Judge committed an error of law in passing the impugned judgment by adopting a wrong approach to the factual situation obtaining therein. The learned counsel would contend that in a case of this nature only Wednesbury Principle could be applied and unless the irrationality in the decision-making process is proved, the findings of the disciplinary authority could not be interfered therewith. Reliance in this connection has been placed on B.C. Chaturvedi v. Union of India & Ors. , ; Indian Oil Corporation Ltd. & Anr. v. Ashok Kumar Arora , ; and State of U.P. & Ors. v. Maharaja Dharmander Prasad Singh & Ors. ,

The learned counsel would urge that even the recent trend of the Apex Court in the matter of back wages is different and in support of the said contention, reliance has been placed on Asstt. General Manager, SBI v. Thomas Jose & Anr. , and Central Bureau of Investigation v. State of Rajasthan & Anr. , (2001) 3 SCC 333

7. Mr. G.D. Gupta, the learned senior counsel appearing on behalf of the respondent, on the other hand, would submit that the disciplinary authority proceeded to pass orders on conjecture and surmises, although the burden of proof was on the Department, but no iota of evidence was adduced to

show that the respondent was gainfully employed during the period from 01.06.1984 to 10.05.1993.

The learned senior counsel would contend that the directions issued by this Court in the aforementioned LPA, as regards holding an inquiry relating to gainful employment had not been complied with.

8. In view of various decisions of the Apex Court, it is beyond any cavil of doubt that the power of judicial review vested in this Court over an administrative action is limited. Illegality, irrationality and procedural impropriety inter alia can only be the basis for interfering with an administrative order. The learned Single Judge while passing the impugned judgment kept the aforementioned proposition in mind. The disciplinary authority, in the opinion of this Court, as has rightly been held by the learned Single Judge, approached the case from a wrong angle, even in the procedural aspect of the matter, namely, the manner in which the disciplinary proceedings were conducted. It is our considered opinion that the disciplinary authority did not pose unto itself the right question, namely, it is for the employer to show that the respondent was gainfully employed.

9. The appellant herein did not adduce any evidence. It placed the entire burden upon the respondent. The respondent was asked to prove his case that he was not gainfully employed. As if he was being tried for evasion of his income, he was asked to explain his entire activities during the period in question. The disciplinary authority, mainly, founded his findings on the following three points.

"a) The source of financing of his 3 foreign trips to Singapore (26.11.84 to 1.12.84), Kabul (20.9.87 to 24.9.87) reportedly for sight seeing and his New York tour along with his wife (15.12.1991 to 21.1.1992) for attending his niece's marriage as well a purchase of foreign currency of these three respective trips.

b) The source of family sustenance consisting of self and five members during the period.

c) The source of setting up his son in the business of STD/PCO and Video Library in Sept./Oct. 1989 with an initial investment of Rs. 65,000/- and further investments made for purchase of lamination machine, fax machine and video cassettes (2500) subsequently."

10. As regards issue No. (a), the disciplinary authority opined (without assigning any reason as to why the contentions of the respondent herein shall be disbelieved) that Mr. Narender Khanna, his brother-in-law had not borne such expenses and jumped to the following conclusion :-

"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."

While arriving at the said finding, the disciplinary authority failed to take into consideration the answers given by the respondent herein to the questions put to him by the Presiding Officer.

Even if it is not possible for a person to prove his contentions by documentary evidence, it could be done by oral evidence. He made a statement before the disciplinary authority to the said effect and the same had not been rebutted. The question as to whether the brother-in-law of the respondent herein bore his expenditure for going to Kabul or not may not appear from any documentary evidence(s). He, therefore, adopted a wrong approach in arriving at the aforementioned conclusion. The learned Single Judge has also held that the said conclusion is based on surmises and conjectures.

11. As regard issue No. (b), the disciplinary authority observed:-

"I have gone thought the entire documents and written replies of Shri Bishamber Lal Kapur besides his statement during personal hearing. I have also questioned him about the apparent factors appearing against him and find him unreliable as regards the sources of sustenance beyond the salary income of his wife as he has neither claimed them earlier in his written replies nor could produce any satisfactory evidence in their support. He is further found to have changed his statement as regards the dependence on his wife's income during the period in question, as he did not include his old mother during the personal hearing. The aforesaid position convinces me to conclude that the changes were made by him for the sake of his convenience only."

"... 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 too. Young person is good health, blessed with a fertile brian, cannot afford to remain idle. Further such a person will not like to suffer from social and religious humility & stigma of being dependent on his wife."

Yet again the said conclusion arrived at by the disciplinary authority demonstrate his prejudice and bias against the respondent. He proceeded on the basis that the respondent was guilty of the charges leveled against him although the same had not been proved. Apparently the other part of his conclusion is based on surmises and conjectures.

Before the disciplinary authority, a large number of documents were produced. The respondent herein tried to explain his mode of sustenance through proof. The materials brought on record were neither analysed nor were discussed in detail. The disciplinary authority also proceeded with a tainted mind, as would appear from his aforementioned observations. While arriving at the said conclusion, the disciplinary authority failed to take into consideration the salary certificate of the respondent's wife.

The disciplinary authority further failed to take into consideration that the order of dismissal had been set aside by a Division Bench of this Court. In normal circumstances, he would be entitled to back wages unless the exception, namely, that he was gainfully employed during the said period, is proved.

12. As regards issue No. (c), the disciplinary authority without taking into consideration any of the aforementioned materials held:-

"... 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 let to unhealthy practice of acquiring them against payment of heavy sums as Pagri/Premium. The young age of his un-experienced 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. Shri Kapoor has further misled the enquiry in respect to a gift made for Rs. 20,000/- in the year 1989 to purchase a photostat machine through the proceeds of an FDR with UCO Bank. The certificate submitted in this regard reflects that the payment was received in the year 1990. The said variance in the statement reflects twisting of facts by Shri Kapoor to suit his convenience to prove his claim against the bank in back wages. He is totally unreliable in this regard. The investments have come through earnings made by him during the relevant period."

13. It is a well-settled principle of law that during the period of unemployment if a person takes up some work, the same should be ignored inasmuch as an employee cannot starve himself to death to prove that he remained unemployed.

14. There cannot be any doubt or dispute that the burden of proof lay upon the appellants herein to establish that the respondent herein was gainfully employed between the period from 01.06.19984 to 10.05.1993. Not only they did not adduce any evidence, but also failed to bring on record any document to show that the respondent herein was gainfully employed. ( See Ishwar Singh v. Delhi Transport Corporation, 1998 V AD (DELHI) 84; The Amritsar Central Co-operative Consumer's Store Ltd. v. State of Punjab & Ors. , 1982 (2) All India Services Law Journal 216; Management of Delhi Transport Corporation v. Ram Kumar & Anr. , 1987 (7) ELJ 128 Delhi; Shambu Nath

Goyal v. Bank of Baroda & Ors. , 1983 (2) All India Services Law Journal 607 ; and Karnail Singh v. State of Punjab & Ors. 1981 (1) SLR 606, ). In that view of the matter, it must be held that the findings arrived at by the disciplinary authority suffer from misdirection of law.

15. We may also notice that the respondent herein had been denied an effective opportunity of preferring an appeal.

A writ court, as is well known, despite its limited jurisdiction to interfere with an order of the disciplinary authority of judicial review, can nevertheless interfere with a finding in the event the same suffers from the vice of illegality, irrationality or procedural impropriety.

16. A bare perusal of the Order passed by the learned Single Judge would clearly show that the disciplinary authority mainly proceeded on surmises and conjectures. While arriving at its decision, it failed to take into consideration the relevant documents and based its decision on irrelevant factors not germane for the purpose of deciding the issue.

17. The respondent herein in relation to all the three issues, namely, his foreign trip - to Singapore from 26.11.84 to 1.12.84; to Kabul from 20.9.87; and to New York for attending a marriage of his niece from 15.12.1991 to 21.1.1992, had adduced sufficient explanation to prove that his foreign trips were financed by his relations. The respondent herein for all intent and purport were not only

asked to file documents by way of discovery but also had been cross-examined both by the Presiding Officer and the disciplinary authority. The following questions and answers in this connection may be noticed :-

"Q.40. Please give the address of the above and their occupation?

Ans. Mr. Jagdish Saggar is married to Mrs. Chand Saggar whose place of business is 2, Phalton Drive, Melville, N.Y. 11747 and their business is at Chand Enterprises. Mr. Sushil Saggar is residing at Long Island N.Y. 11717 and place of business is Roosevelt, New york. Mr. Satinder Saggar is residing at New Ark Avenue, New Jersey. Mrs. Santhosh Kapur is residing at New Ark Avenue, New Jersey. My sister-in-law Smt. Krishna is residing at Panj Peer Chowk, Jalandhar City and is leading business family at Jalandhar city.

Q.48. Please tell your stay within India and Outside India for the period 1.6.84 to 10.5.93.

Ans. I usually stayed with my family members during the period in India except when I was to visit various station for attending functions of my relatives, friends, on account of Hindu Religious rites only. During my foreign visits my stay was for three/fifteen days only. At the time of my first visit to Singapore via Bangkok I have to advise that I left Delhi on 26.11.1984 and reached Bangkok the same day i.e. 26.11.84 and stayed there with one of the friend of my brother-in-law who took me with him and left Bangkok on 29.11.84 and reached Singapore on 30.11.84 and left Singapore on the same night and reached India i.e. 1.12.1984. During my visit to Kabul, I left India on 21.9.87 and reached Kabul on 22.9.87. During my visit to Kabul we stayed at Gurdwara of Bhai Gurdas. During my visit to New York, left India on 15.12.91 and stayed with my elder brother-in-law Mr. Jagdish Saggar, whose address is given above and left U.S.A. on 20.1.1992 and reached back to India on 21.1.92.

Q.49. Please tell what was the purpose of visiting these countries and also tell how you meet the traveling expenses and other expenses?

Ans. My brother-in-law Late Narinder Nath khanna took me to Singapore and Kabul and I further state that all the expenses were incurred by him. His place of residence was 3/36, Rajinder Nagar, New Delhi and he was running a firm of Khanna Electroplater at 6, Tooti Chowk, New Delhi. I went to U.S.A. to attend marriage ceremony of my niece i.e. daughter of my elder brother-in-law Mr. Jagdish Saggar, who arranged VISA and to and fro Air ticket for me. At U.S.A. I stayed with my brother-in-law house and he incurred all the expenses of my stay there. I further state that my brother-in law took me to Bangkok for a pleasure trip and also to Kabul for a pleasure trip.

Q.50. After going through the passport it is observed that you have purchased foreign currency of U.S. Dollars of five hundred on 24.11.84 and 21.9.87 and 20 U.S. Dollars on 21.9.87. Please tell the source of purchasing of the above?

Ans. I have to state that my brother-in-law Mr. Khanna took me to a Bank and paid the money for purchase of above currency and I once again declare that I did not incur any expenses.

Q.51. You stated that you brother-in-law has arranged for your trip to attend the marriage ceremony of her daughter but in an affidavit submitted to Counsilor American Embassy New Delhi by your brother-in-law he has only declared to provide lodging and boarding for you and your wife, then your version that he had met the traveling expenses is not understandable, please clarify?

Ans. As I was out of employment during the relevant period I showed my inability to incur such huge expenses my brother-in-law arranged a Air ticket through his brother Mr. Mohinder Pal Saggar, who told us that we should be ready for flight and need not worry for the Air ticket. He purchased two tickets one for me and another for my wife and we left for U.S.A."

The respondent herein had also produced documents both before the disciplinary authority as also before the appellate authority. Certain documents, however, were placed before the appellate authority with a view to explain the situation, which was not covered by the questions posed to him by the Presiding Officer or by the disciplinary authority in the disciplinary proceedings, but despite the same certain findings had been arrived at by the disciplinary authority on the basis of surmises and conjectures. The said documents annexed by the respondents were air ticket of the trip to USA; statement of bank account of Mr. Narender Khanna, brother-in-law (sister's husband)-doing the work of electro- plating; affidavit of Ms. Nirmal Khanna. The disciplinary authority in his order, which was impugned before the learned Single Judge, failed to take into consideration any of the aforementioned documents.

18. According to the respondent herein, first two foreign trips were financed by afore-mentioned Mr. Narender Khanna, while the third trip to USA was financed by Mr. Jagdish Sagar, brother-in-law (wife's brother) and with a view to prove the said statements, affidavits were filed to show that Mr. Narender Khanna had arranged the first two foreign trips, while in the case of the trip to USA, the respondent's wife did so.

19. As regards source of family sustenance consisting of himself and five other members, the respondent herein had furnished salary certificate of his wife, Smt. Sudesh Kapur besides various other documents. The salary certificate of the respondent's wife is as under :-

INCOME CHART

1984-85

1985-86

1986-87

1987-88

1988-89

Gross Income

43,292    Page-250

42,133/- page-251

45,081/-page-252

48,385/-page- 353

56,061/-page-254

Net Income

9,000

17,987/-

11,593/-

8,126

(instead

41,596/-

(instead of

of 2458-as  shown wrongly) page 349-

1,676/-as shown wrongly) page-349-51 Rs.3-7-88    

-8550 31-1-89 12,625 28-2-99- 10000

Gross total

52,292/-

60,117/-

56,674/-

58,511/-

97,657/-

Investments asper     IT

return

9,007/-

14,641/-

16,126/-

17,153/-

29,160/-

Recurring  Deposit

3,600/-

3,600/-

3,600/-

3,600/-

7,200/-

Loan

6,050/-

2,054/-

4,574/-

1,200/-

(in stead of 8831/-) page 38-no payments as   shown

 - page 352-2353

NIL

Payment towards       of Plot.

3,858/-.

1,811/-

NIL

NIL

NIL.

25,000/-

+

Nil     (wrongly shown          of Rs.20,000/-) page    38    of LPA). page 57

5,000/-

1,000/-

30,000/-(wrong shown FDRs         of Rs.33,200/- ) 31-9-50 2-2-87 13000       1-12-88 12000    28-6-88

- 5000 30,000 page

Nil

Nil    (encashments-

119)

NIL

NIL

10,000/-

Total

47,515/-

25,076/-

29,300/-

29,583/-

76,360/-

Gross Income

52,292/-

60,117/-

56,674/-

56,511/-

97,657/-

Bonus

Investment/ deductions

47,515/-

25,076/-

29,300/-

29,583/-

76,360/-

[VSP9] In hand

4,717/-

3,5041/-

27,374/-

26,928/-

21,297/-

Other Income

7,465/-      

(Salary of B.L. 

Kapoor) 8,907/-8,907/- page 119 (Encashment of ULIP) page 174-175 35,041page 118

Allcommittee,

42,000/-

Cashin hand

72,050/-

35,041

27,374

26,928

21.297 +60 Sale proceeds of Plot

Other documents, which were filed by the respondent, are as follows:-

(i)Income tax return of Mr. Rajan containing annual income;

(ii) Photocopy of respondent's passport;

(iii) Photocopy of correspondence between Mr. Jagdish Saggar, respondent's brother-in-law, and correspondence with the American Embassy;

(iv) Statement of saving bank account No. 317 form 1.6.84 to 10.5.93 of Allahabad Bank, Clock Tower, Ludhiana; and

(v) Letters dated 22.4.96, 24.4.96 and slip of its dispatch under U.P.C. to Link Road Ludhiana asking for statement of account of my saving bank and current a/c for the period 1.6.84 to 10.5.93.

In this connection, it is also relevant to notice the following questions and answers:-

"DA9 : On the basis of information furnished by you, it is gathered that the deductions from the salary of your wife and investments in deposits left hardly an amount enough to sustain the family. The deductions and investments made during 1984-85 and 1988- 89 were more than the gross income. It suggest that family was not depending on her. What you have to say in this regard?

BLK : The amount available from the maturity of Mohalla committee in 1984 was sufficient for sustance in 1984 and 1985. In 1988, I encashed my ULIP. In 1986, I encashed a fixed deposit with Clock Tower Ludhiana approximately between Rs. 9,000/- to Rs. 11,000/-. In 1987, my wife took a loan from her employment against PF balances.

During 1990, I received Rs. 83,000/- towards proceeds from UCO Bank. The investment was for Rs. 66,000/- on 5.7.88. In 1990, I sold my scooter for Rs. 6,380/- payable in six Installment of Rs. 1,000/- each."

20. As regards ownership of plot No. B - XI, 219 Samrala Road in the name of Smt. Ram Pyari is concerned, various documents have been filed, including Certificate of the Commissioner, Municipal Corporation, Ludhiana.

The respondent had also filed several documents as regards earlier investments in FDR and other deposits, with were made by his wife Smt. Sudesh Kapur. Various certificates were issued by UCO Bank, Miller Ganj, Ludhiana and Unit Trust of India, 13, Sir Vithaldas Thackersey Marg, Post Box Bag No. 11410, Bombay-400 020 in this behalf.

21. The respondent herein in the writ petition as regards the finding of the disciplinary authority urged:-

"The petitioner was enquired almost every detail right from giving birth to his children to joining Bank, about his wife, her employment and her Bank accounts, the saving of the petitioner and his wife, the property in which the petitioner is residing, about deployment of petitioner's son, his income and investments, about the marriage of the petitioner's son and about the deployment of daughter-in-law of the petitioner & her parents, and details of in-laws of the petitioner, details of brothers and sister of the petitioner and their business/nature of work, address of business/work as well as residential addresses. The respondent No. 3 enquired about the petitioner, his wife and his son from the income tax department also, and also went to in-laws of the petitioner, and in-laws of the petitioner's son, also from neighborhood of the petitioner, and also about the establishment of sister of the petitioner, also checked from the telephone department. The respondent No. 2 thereafter held a third enquiry on 7.6.96 at Zonal office, New Delhi, which was presided over by respondent No. 2 of six members team, comprising of the Disciplinary Authority i.e. respondent No. 2 assisted by Sh. K.L. Bhatt (Chief Vigilance Officer), Shri. K.L. Bajaj, the respondent No. 3, the presenting officer, the Enquiry Officer, Shri. Anil Aggarwal, the law officer and Shri. M. N. Mehrotra (The Chief Manager), all the senior most officers of the North Zone, New Delhi of the respondent Bank. The Disciplinary

marked all the correspondence and the show- cause notices issued to the petitioner, and the petitioner's replies to the same, as exhibits in the second enquiry conducted by respondent No. 2.

The petitioner was again put questions in the enquiry the same which were earlier asked by respondent No. 3 in the personal enquiry / interrogation held by him, and the petitioner reiterated his answers already given to respondent No. 2 on 7.6.96. A true copy of the second enquiry held on 7.6.96 by respondent No. 2 is annexed here and marked as Annexure-M."

Such a procedure adopted in a departmental proceeding is unknown in law.

22. As regards ownership of the said house in the name of the respondent herein, it had been contended that the same had been purchased by his father in the year 1952 and after his death the same has been transferred in his mother's name. Similarly, as regards possession of the air-conditioner and telephone in the name of his wife, the respondent herein had stated:-

"Q.21. Please tell what telephone number you are having at your Civil house? If so, in whose name?

Ans. There is no telephone at my civil lines residence. But at the house of my mother Smt. Ram Piari there is a telephone connection No. 32407 in the name of my wife Smt. Sudesh Kapur. Relative telephone bill photocopy is enclosed.

Q.34. Having a look at the statement of movable property you have not mentioned regarding A.C. fitted in one of the room. Please clarify the exact position.

Ans. The room fitted with A.C. belong to my mother who was not feeling well and my two brothers have arranged the said A.C. for the use of my mother only. I have to do nothing with it."

As regards the price of lamination machine, it was stated that the same was purchased only for Rs. 2,000/- and so far as the purchase of fax machine is concerned, the same having been purchased in April, 1995, it would not come within the scope of the said enquiry.

23. What has been noticed hereinbefore that the disciplinary authority as also the appellate authority failed to pose unto themselves a right question. 'Pose a wrong question and get a wrong answer' is an age-old saying. It is now a trite law that a statutory authority must pose unto itself a right question so as to enable it to arrive at a correct finding of fact leading to enunciation of correct principles of law.

24. In Secy. of State for Education & Service v. Metropolitan Dorough Council of Tameside 1976 (3) All ER 665, it has been held:-

"...And the decision to which he comes must be one which is reasonable in this sense, that it is, or can be, supported with good reasons or at any rate be a decision which a reasonable person might reasonably reach. Such is, I think, plain from Padfiled v. Minister of Agriculture, Fisheries and Food (1968) 1 All ER 694, which is a landmark in our administrative law and which we had in mind in Secretary of State for Employment v. Associated Society of Locomotive Engineers and Firemen (Bo. 2) (1972) 2 All ER 949. So much for the requirements if the Minister is to be 'satisfied'."

25. The question as to whether the respondent herein was entitled to the back wages or not was required to be considered from the aforementioned angle. As the disciplinary authority failed to consider the matter in its right perspective, he committed misdirection in law.

26. The fact that services of the respondent herein had been illegally terminated is not in dispute. This Court while holding the right of the respondent to get back wages did not grant the same to him. Once it is held that the respondent and his family managed to survive as not only his wife was serving but also his son had a business, the same by itself cannot be a ground for denying him the right of the back wages. The right of back wages could be denied only in the event it was proved that the respondent herein was self-employed on the basis of the materials, which were brought on record. It was also obligatory on the part of the disciplinary authority to arrive at a finding that during the period in question, what was the amount earned by the respondent. In absence of such a proof or finding to the said effect, the impugned judgment cannot be faulted.

27. In Ishwar Singh's (Supra) , (1972) 2 All ER 949 a learned Single Judge of this Court held:-

"... If after such a protracted time and energy consuming litigation during which period the workman just sustains himself ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigation activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, I should be followed with full back wages. Article 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect."

While arriving at the aforesaid finding, the learned Single Judge has relied upon various decisions of the Apex Court.

28. In Rajinder Kumar Kindra v. Delhi Administration Through Secretary (Labour) and Ors. , it was held:-

"21. It was next contended on behalf of the appellant that reinstatement with full back wages be awarded to him. Mr. P.K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. In support of this submission Mr. Jain pointed out that the appellant in his cross examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father-in-law Tara Chand who owns a coal depot, and that he and the members of his family lived with his father-in-law and that he had no alternative source of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment so as to reject the claim for back wages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back wages and all consequential benefits."

29. In Rajendra Prasad v. State of Uttar Pradesh and Ors. 1989 Allahabad Weekly Cases 377, it was held:-

"15. Coming to the next question as to whether the petitioner can be deemed to be in gainful employment. As a last resort to his frustration during the period of suspension being unable to keep his body and soul together, the petitioner started legal practice. But the said practice cannot be deemed to be gainful employment, particularly in the absence of any evidence from the side of respondent as to what was the practice of petitioner and was he able to save any amount, or what was his earning. The petitioner became a member of the legal fraternity during the period of forced unemployment on the basis of the order of suspension, which was void ab initio, as indicated above. Even if during that period some amount was earned to make his both ends set; that cannot be said to be gainful employment.

16. There appears to be another aspect of the matter also that the gainful employment means actually in the employment. Joining legal fraternity conniver be said to be employment. Joining of legal fraternity could not disentitle the petitioner to claim his arrears of salary from the date he was suspended. It was for the respondents to prove as to how the petitioner could be said to be in gainful employment...."

30. In The Amritsar Central Co-operative Consumer's Store's case (Supra), 1985 SCC (L&S) 277 M.M. Punchhi, J. as his Lordship then was, held:-

"8. ... The law in this regard has been crystallized that ordinary workman whose service has been illegally terminated, would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. See in this connection Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd. etc. AND full Bench decision of this Court in Hari Palace v. The Presiding Officer etc., [1976 P.L.R. 720]. The Full Bench has further held that the party who would like the normal rule to be deviated from, must establish the circumstances necessitating departure. In other words, the management must normally pay back wages to the employee whose service was illegally terminated, unless it can establish the circumstances necessitating departure from the rule, by pleading and proving that the workman was gainfully employed during the enforced idleness."

31. In Management of Delhi Transport Corporation's case (Supra), Rajinder Sachar, J., as his Lordship then was, speaking for a Division Bench observed:-

"13. ...Thus if the employer wishes to show that workman was gainfully employed he must establish and prove that fact no presumption of being gainfully employed can be raised...."

32. In Abhinash Chandra Gautam v. Union Territory of Tripura and Anr. 1985 SCC (L&S) 277, it was observed:-

"1. The only point canvassed for consideration in this appeal is whether while computing the backwages payable to the appellant for the period from July 8, 1952 to the date of his retirement in 1976, his earning as a teacher should be taken into consideration and what amount should be deducted from backwages proportionate to the amount earned by him. It may be mentioned that deceased appellant was discharged from service, which discharge is held to be invalid and illegal and he is held to be continuously in service which entitles him to backwages. That part of the decree by which deceased appellant's discharge from service is held to be illegal and invalid is unassailable as concurrently held by all courts. The question of computing backwages arises in these circumstances. The respondents contended that deceased appellant served as a teacher and his earning as a teacher must be deducted from backwages payable to him by the respondent. Mr. N.K. Sharma learned counsel who appeared for the appellant pointed out that the appellant has admitted in his evidence that he was serving as a teacher on a monthly salary of Rs. 100. It was submitted the appellant to keep his body and soul together had to make out a living. This is not controverter and there is no material to show that the appellant earned something more than Rs. 100 per month."

33. In Shambhu Nath Goyal's case (Supra), Varadrajan, J. as his Lordship then was, stating for the Bench held:-

"13. The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to make up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman was gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earlier stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalized undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated 8.2.1979 in an industrial dispute which arose so early as in 1965. ..."

34. In Karnail Singh's case (Supra), it was held:-

"7. The onus to prove that the petitioner had remained gainfully employed during the period his services remained terminated is on the employer. In case, the employer fails to discharge onus on this point, the workman will be entitled to full back wages for the period his services remained terminated. The claim of the petitioner for back wages could not be declined on the ground that he had not stated that he had made efforts to seek alternative employment after his services were terminated and he had failed. In this situation, the learned counsel for the parties agree that the order of the Labour Court regarding payment of backwages should be set aside and the case be remanded for a fresh decision after allowing the parties to adduce evidence, if they so desire."

35. Yet again in S.D. Sharma v. Trade Fair Authority of India and Ors. 1985 (1) All India Services Law Journal 160, it was observed:-

"35. Thus if the employer wishes to show that workman was gainfully employed he must establish and prove that fact no presumption of being gainfully employed can be raised (See Ram Kumar's case supra)."

36. From what has been noticed hereinbefore, it is evident that although the learned Single Judge proceeded on the basis that the order of the disciplinary authority is irrational, we are of the opinion that the said judgment can also be sustained on various other grounds.

It is true that the Wednesbury Principle has to be applied for striking out an order on the ground of irrationality, but, as noticed hereinbefore, even if it be held that there was some evidence and in the event it is found that the disciplinary authority had not taken into consideration relevant facts and based his decision only on surmises and conjectures, the same cannot be upheld otherwise also.

One must remember the cardinal principle that while reinstatement is ordered, payment of back wages is the rule and non-payment is an exception and in that context the settled position of law is that the onus of proof is on the employer. Once an employer fails to discharge the onus, the courts are not expected to take a skeptical view of the matter. A person may be dependent on his wife or his son or other member(s) of his family, but till then it is not established that he himself had been earning, he cannot be denied the back wages.

37. The principle underlying the grant of back wages may be considered from another angle also, namely, as to whether the concerned employee was willing to work, but had not been given the work or he had not been allowed to perform his duties. Once it is held that for some reason or the other, he had not been allowed to perform his duties, he would be entitled to the back wages.

38. Our observations aforementioned, however, would not mean that the Court in no situation would be entitled to deny back wages or a part of it to the concerned employee(s). The Court in a given situation may pass an order keeping in view the facts and circumstances of each case, which is to be decided on its own merit. Thus, submission of Mr. Dhruv Mehta to the effect that the recent trend of the Apex Court is to deny back wages cannot be accepted.

It may be true that in Asstt. General Manger, SBI's case (Supra) and Central Bureau of Investigation's case (Supra) back wages had not been granted, but in the aforementioned cases, the Apex Court had not laid down any law within the meaning of Article 141 of the Constitution of India.

Furthermore, in the instant case, the learned Single Judge has arrived at a finding of fact that a Court of Appeal, while exercising his power under Clause 10 of the Letters Patent, although is entitled to examine its findings both on facts as well as on law, but would not ordinarily interfere with a finding of fact. It is well known that a decision should not be interfered with only because two opinions are possible. It can be interfered with only when the same is clearly wrong and not when it is not right. (See Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha 1980 (1) L.L.J. 137.

39. For the aforementioned reasons, we are of the opinion that it is not a fit case where this Court in term of its power under Clause 'X' of the Letter Patent should exercise its jurisdiction. This appeal is accordingly dismissed but there shall be no order as to costs.