# Chairman & Managing Director, Central Bank Of India, Mumbai v. Vijay Agarwal

- **Citation:** (2023) 5 ILRA 1577
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-12
- **Case number:** Special Appeal No. 344 of 2021
- **Bench:** Suneet Kumar, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chairman-managing-director-central-bank-of-india-mumbai-v-vijay-agarwal-50142
- **Pages:** 5

## Headnote

Civil Law - Service Matter - Back wages -
When dismissal order quashed on ground
of quantum of punishment and not on
merit - In the instant case the employee
was out of service pursuant to order of
dismissal
dated
04.08.2006
until
his
reinstatement on 24.08.2013. Aggrieved
by the dismissal order, the employee filed
a writ petition, which came to be allowed
only on the quantum of punishment. Writ
Court was of the opinion that the
punishment
imposed
was
not
commensurate with the guilt. Termination
of the employee was not held to be
wrongful by the writ Court. Rather, the
writ Court was of the opinion that a lesser
punishment would suffice, having regard
to
the
guilt
of
the
employee.
The
employee nowhere pleaded that he was
not gainfully employed or employed on
lower
wages
during
the
period
of
dismissal of service. Held: It cannot be
said that the guilt of the employee stood
wiped off; rather, reinstatement was
directed
as
a
consequence
of
the
imposition of a lesser punishment. The
employee would not be entitled to back
wages for the period he has not performed
1578 INDIAN LAW REPORTS ALLAHABAD SERIES
his duties nor consequential benefits, as a
consequence
of
such
reinstatement.
Having regard to the fact that the
employee was out of employment for
eight long years, 30% of back wages was
directed to be paid to the employee for the
period he was out of employment. (Para
12, 13, 14)

Allowed. (E-5)

List of Cases cited:

## Text

5 All. Chairman & Managing Director, Central Bank of India, Mumbai Vs. Vijay Agarwal
1577

17.
In
view
thereof,
the
petitioners are also covered by the
aforesaid interpretation of Section 2 of the
Act of 2021 as given in the present
judgment. Orders impugned in different
writ petitions on the grounds stated above
are covered by the earlier judgments as
well as by findings given above in this
judgment and, hence, petitioners are held
to be entitled for counting of their services
rendered as daily wagers for pensionary
benefits. All impugned orders are set
aside."

9. The present Rules of 1981 are
parallel to the Rules of State Government
which have been read down by the
Supreme Court in the case of Prem Singh
(supra), being held violative of Article 14
of the Constitution of India, as they create
an artificial categorization of similarly
situated employees. In the present case also
an artificial classification is created as
admittedly, as the daily wager employees
perform the same duties as the regular
employees and are throughout treated as
the regular employee. They were also
regularized in continuation of their daily
wage services. Thus, the matter is squarely
covered by the law settled in case of Prem
Singh (Supra) and Dr. Shyam Kumar
(supra).

10. Hence, the writ petition is
allowed.

11. Respondent no.2-Mukhya Nagar
Adhikari, Nagar Nigam, Bareilly is directed
to ensure regular payment of pensionary
and other retiral benefits to the petitioner
under the Rules of 1981, counting their
entire service including the duty performed
as daily wager employee of the Nagar
Nigam within a period of three months.
----------
(2023) 5 ILRA 1577
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Special Appeal No. 344 of 2021

Chairman & Managing Director, Central
Bank Of India, Mumbai ....Appellant
Versus
Vijay Agarwal ...Respondent

Counsel for the Appellant:
Sri Vishnu Pratap, Sri Vijay Kumar

Counsel for the Respondent:
Sri Ajay Rajendra

Civil Law - Service Matter - Back wages -
When dismissal order quashed on ground
of quantum of punishment and not on
merit - In the instant case the employee
was out of service pursuant to order of
dismissal
dated
04.08.2006
until
his
reinstatement on 24.08.2013. Aggrieved
by the dismissal order, the employee filed
a writ petition, which came to be allowed
only on the quantum of punishment. Writ
Court was of the opinion that the
punishment
imposed
was
not
commensurate with the guilt. Termination
of the employee was not held to be
wrongful by the writ Court. Rather, the
writ Court was of the opinion that a lesser
punishment would suffice, having regard
to
the
guilt
of
the
employee.
The
employee nowhere pleaded that he was
not gainfully employed or employed on
lower
wages
during
the
period
of
dismissal of service. Held: It cannot be
said that the guilt of the employee stood
wiped off; rather, reinstatement was
directed
as
a
consequence
of
the
imposition of a lesser punishment. The
employee would not be entitled to back
wages for the period he has not performed
1578 INDIAN LAW REPORTS ALLAHABAD SERIES
his duties nor consequential benefits, as a
consequence
of
such
reinstatement.
Having regard to the fact that the
employee was out of employment for
eight long years, 30% of back wages was
directed to be paid to the employee for the
period he was out of employment. (Para
12, 13, 14)

Allowed. (E-5)

List of Cases cited:

1. Pradeep S/o Raj Kumar Jain Vs Manganese
Ore (India) Ltd. & ors., (2022) 3 SCC 683

2. Deepali Gundu Surwase Vs Kranti Junior
Adhyapak Mahavidyalaya, (2013) 10 SCC 324

(Delivered by Hon'ble Suneet Kumar, J.
&
 Hon'ble Rajendra Kumar-IV, J.)

1. Heard Sri Vishnu Pratap learned
counsel
appearing
for
the
appellant/respondent
and
Sri
Ajay
Rajendra, learned counsel appearing for the
respondent/petitioner.

2. Petitioners, herein, a bank, by the
instant intra court appeal has raised
challenge to the judgment and order dated
26 July 2021, passed by the learned Single
Judge in Writ-A No. 43450 of 2014 (Vijay
Agarwal vs. Chairman and Managing
Director Central Bank of India and others)
to the extent that the impugned order has
directed appellant to pay arrears of salary
and consequential benefits for the period of
dismissal until reinstatement.

3. The respondent/petitioner was out
of service pursuant to an order of dismissal
dated 4 August 2006 until his reinstatement
24 August 2013. Aggrieved, by the
dismissal order the respondent/petitioner
filed a writ petition being Writ-A No.
17804 of 2007, which came to be allowed
only on the quantum of punishment
imposed on the respondent/petitioner. The
writ Court was of the opinion that the
punishment imposed is not commensurate
to
the
guilt,
accordingly,
a
lesser
punishment would suffice. The operative
portion of the order reads thus:

"Hence, the punishment awarded
against the petitioner is disproportionate to
the charges against him. Hence, the order
dated 4.8.2006 passed by the disciplinary
authority, respondent no. 3, the order dated
19.12.2006 passed by appellate authority,
respondent no. 2 and the charge sheet dated
6.6.2005 (Annexures No. 1,2 and 3
respectively to the writ petition) are hereby
quashed. The disciplinary authority will
consider the matter afresh for awarding any
lesser punishment apart from dismissal or
removal from service and will pass an
appropriate order as expeditiously as
possible preferably within two months after
furnishing of the certified copy of this
order.

Accordingly, the present petition
is hereby allowed. No order as to cost."

4. It appears that the appellantrespondent filed a review petition being
Review Application No. 380227 of 2011,
seeking review of the writ Court order
dated 20 November 2012. The writ Court
disposed
of
the
review
application
clarifying that the writ Court order is
required to be complied after reinstating the
petitioner/employee, thereafter, consider
the matter afresh for awarding lesser
punishment. Relevant portion of the order
reads thus:

"In view of fact the judgment and
order which charge sheet dated 6.6.2005
annexure-3 to the writ petition was
5 All. Chairman & Managing Director, Central Bank of India, Mumbai Vs. Vijay Agarwal
1579
quashed. It is clarified that by judgment
and order dated 20.11.2012 only orders
passed by the disciplinary authority and
appellate authority dated 4.8.2006 and
19.12.2006 are quashed.

The respondents will ensure the
compliance of the judgment and order
dated 20.11.2012 firstly by reinstating the
petitioner employee and subsequently by
considering the matter afresh for awarding
lesser punishment.

Accordingly, the review petition
is finally disposed off."

5. In other words, the writ Court
clarified that the appellant/bank is required
to award a lesser punishment other than
dismissal/removal.
The
writ
Court,
however, did not return a finding that the
disciplinary enquiry was vitiated or that the
petitioner was not found guilty of the
charge levelled against him. Thereafter, in
compliance, respondent/petitioner came to
be reinstated in service and from the stage
of charge-sheet a fresh enquiry was
conducted, finally the disciplinary authority
imposed punishment vide order dated 11
June 2014, bringing down two lower stages
of scale of pay permanently w.e.f. 31 July
2013 (order passed on the correction
application filed by the appellant) to the
order passed on the review petition.
Aggrieved by the punishment order,
respondent/petitioner again approached the
writ Court, wherein, the impugned order
has been passed.

6. The appellant/respondents are
aggrieved that the writ Court while
upholding the order of the disciplinary
authority partly, allowed the writ petition,
insofar,
it
deprived
the
respondent/petitioner arrears of salary for
the period for which the order of dismissal
was operative. The relevant portion of the
impugned order reads thus:

It becomes relevant to note that
upon the matter being remanded all that
remained for the respondents to consider
was what punishment in substitution was
liable to be imposed other than dismissal or
removal from service. Once the order of
dismissal came to be set-aside by the Court,
the only punishment which could have
been imposed and was in fact imposed by
the respondents themselves was of the
petitioner being brought down to two lower
stages in the pay scale. The Court has not
been shown any power vesting in the
respondents to deprive the petitioner of
emoluments for the period during which
the order of dismissal operated. In view of
the aforesaid discussion and to that limited
extent, the Court finds itself unable to
sustain the decision of the respondents.

The additional submission of Sri
Tiwari that on the principle of "no work no
pay", the petitioner must be deprived of
arrears during the period when the order of
dismissal operated, is noticed only to be
rejected for the following reasons. The
principle of "no work no pay" would apply
where a workman or employee on his own
chooses not to work or discharge his duties.
However, it can have no application to a
case where the employer by his own action
has
prevented
the
employee
from
discharging duties. In the present case, the
petitioner stood dismissed from service. It
is therefore not a case where the petitioner
of his volition chose not to discharge
duties.

Accordingly, the writ petition is
partly allowed. The impugned order insofar
as it deprives the petitioner of arrears for
1580 INDIAN LAW REPORTS ALLAHABAD SERIES
the period from which the order of
dismissal operated stands set aside. The
petitioner
shall
be
entitled
for
all
consequential benefits.

7. In the aforenoted backdrop, it is
submitted that the earlier punishment order
of dismissal/removal from service was not
set aside by the writ Court on merit. No
finding was returned that the the findings
returned in the enquiry was per se perverse
or is not based on the rules applicable to the
respondent/petitioner. In other words the
findings returned by the enquiry officer
with
regard
to
the
guilt
of
the
respondent/petitioner was upheld. The writ
Court merely remanded the matter to the
disciplinary authority to award a lesser
punishment as in he opinion of the Court,
having
regard
to
the
facts
and
circumstances of the case, the punishment
of dismissal/removal from service awarded
to
the
respondent/petitioner
was
not
commensurate to the guilt.

8. This fact was duly clarified by the
writ Court in the review petition filed by
the appellant/respondent. Thereafter, since
the order of dismissal was set aside and the
court had directed the appellant/bank to
reinstate the respondent, thereafter, pass an
order of punishment, it would certainly not
mean that the order of dismissal would
relate back to the date on which it was
passed. The opinion of the writ Court that
while setting aside the dismissal order, it
would be taken that it had never existed in
the
eye
of
law,
therefore,
the
respondent/petitioner is entitled to backwages is not tenable. The order of
punishment was only set aside on technical
grounds being not commensurate to the
guilt
but
the
enquiry
against
the
respondent/petitioner holding him guilty
was upheld and the disciplinary authority
was directed to pass a fresh order of
punishment
lesser
than
that
of
dismissal/removal. In the circumstances it
cannot be said that by setting aside the
dismissal order the status quo ante would
stand restored with all consequential effect.
It was subject to outcome of imposition of
the penalty to be imposed by the
disciplinary authority. The disciplinary
authority was within his competence to
pass separate order with regard to back
wages.

9. In Pradeep S/o Raj Kumar Jain
vs. Manganese Ore (India) Limited and
others (2022) 3 SCC 683, the question
before the Supreme Court was as to
whether
the
High
Court
directing
reinstatement of the respondent/petitioner
was justified in denying him the benefit of
backwages. Reliance was placed on a three
Judge Bench decision rendered in Deepali
Gundu Surwase vs. Kranti Junior
Adhyapak Mahavidyalaya (2013) 10
SCC 324, wherein, the principles for
entitlement to backwages upon wrongful
termination of service was restated. The
Court held that in cases of wrongful
termination of service, reinstatement with
continuity of service and back wages is the
normal rule. Para 38.1 reads thus:

"38.1. In cases of wrongful
termination of service, reinstatement with
continuity of service and back wages is the
normal rule."

10. Further, the Court held that the
aforesaid rule is subject to the rider that
while deciding the back wages, other
factors have to be taken into consideration
that is the nature of misconduct, the
financial condition of the employer and
similar other factors. It is required for the
employee or workman whose services are
5 All. Imran Khan Vs. State of U.P. & Ors.
1581
terminated and who is desirous of getting
back wages is required to either plead or at
least
make
a
statement
before
the
adjudicating authority or the court of first
instance that he/she was not gainfully
employed or was employed on lesser
wages. Para 38.2 and 38.3 are extracted:

38.2. The aforesaid rule is subject
to the rider that while deciding the issue of
back wages, the adjudicating authority or
the court may take into consideration the
length
of
service
of
the
employee/workman,
the
nature
of
misconduct, if any, found proved against
the
employee/workman,
the
financial
condition of the employer and similar other
factors.

38.3. Ordinarily, an employee or
workman whose services are terminated
and who is desirous of getting back wages
is required to either plead or at least make a
statement before the adjudicating authority
or the court of first instance that he/she was
not gainfully employed or was employed
on lesser wages. ...

11. Applying the principles in the facts and
circumstances of this case, termination of the
respondent/petitioner was not held to be
wrongful by the writ Court. Rather, the writ
Court was of the opinion that a lesser
punishment would suffice having regard to the
guilt of the respondent/petitioner. Further,
respondent nowhere pleaded that he was not
gainfully employed or employed on lower wages
during the period of dismissal of service.
Accordingly, it cannot be said that the guilt of the
respondent/petitioner stood wiped off while he
was punished, rather, reinstatement was directed
as a consequence of imposition of a lesser
punishment, the respondent/petitioner would not
be entitled to back wages, nor, consequential
benefits as a consequence of such reinstatement.

12. On specific query, learned counsel
for the respondent/petitioner fairly submits
that the respondent has not assailed the
impugned writ Court order, to the extent the
learned Single Judge upheld the enquiry and
the guilt of the petitioner.

13. In the circumstances, while
imposing lesser punishment, in the opinion of
the disciplinary authority the respondent is
not entitled to wages for the period he has not
performed his duties would be justified in
view of Deepali Gundu (supra).

14. The impugned order is, accordingly,
set aside to the extent it directs payment of
back wages with all consequential benefits.
Having
regard
to
the
fact
that
the
respondent/petitioner was out of employment
for eight long years, it would be equitable that
30% of back wages be paid to the
respondent/petitioner for the period he was
out of employment. The same shall be
computed and released by the appellant-bank
within three months from the date of filing of
certified copy of this order.

15. No cost.
----------
(2023) 5 ILRA 1581
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 1078 of 2023

Imran Khan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Akhilesh Kumar, Sri Akhilesh Chandra Shukla