Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 5919-5920 OF 2019
(Arising out of Special Leave Petition (Civil) No(s). 15954-55 of 2019)
RAJASTHAN HOUSING BOARD ….. APPELLANT(S)
VERSUS
ROSHAN LAL SAINI AND OTHERS ….. RESPONDENT(S)
W I T H
SPECIAL LEAVE PETITION (CIVIL) NO. 6342 OF 2017
J U D G M E N T
SANJIV KHANNA, J.
A. CIVIL APPEAL NO(S). 5919-5920 OF 2019
Leave granted.
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2. Impugned order and judgment dated 18 May, 2015 passed by
the High Court of Judicature for Rajasthan at Jaipur in D.B. Civil
Special Appeal (Writ) No. 1265 of 2014 upholds the order and
Signature Not Verified
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judgment of the learned Single Judge dated 23 May, 2014
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2019.07.29
16:57:56 IST
Reason:
allowing the writ petition filed by the first respondent- Roshan Lal
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Saini, quashing the order dated 3 January, 2003 passed by the
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appellant- Rajasthan Housing Board under Rule 86(3) of the
Rajasthan Service Rules removing the first respondent from
service on the ground of unauthorised absence for three months,
which order of dismissal was upheld by the Labour Court. While
quashing the dismissal and remanding the matter to the Labour
Court, learned Single Judge had further directed:
“ [T]he … Housing Board shall be at liberty to
adduce evidence before the labour Court as
expeditiously as possible but not later than three
months from the date now fixed by this court for the
parties to appear before the Labour Court.”
Agreeing, the Division Bench in the impugned judgment has not
interfered with the above directions.
3. The impugned judgment also upholds the finding of the learned
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Single Judge quashing the second order of dismissal dated 25
October, 2013 passed in the disciplinary inquiry proceedings
initiated for embezzlement of funds, irregular payments, missing
vouchers etc. vide the charge sheet served on the first respondent
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on 10 October, 2002.
4. The Special Leave Petition states that the first respondent has
filed as many as 48 cases, which highlights the long and
chequered history of (over) litigation that has contributed to
somewhat conflicting orders in different cases. To avoid prolixity,
and as a fairly limited issue arises for consideration before us, we
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need not for the purpose of the present order refer to in detail the
gamut of disputes and litigations, albeit we will be referring to the
relevant facts in brief.
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5. The first respondent, was suspended vide order dated 17
August, 2002 on the basis of a prima-facie investigation in the
charges for embezzlement of funds, irregular payments, missing
vouchers etc. to the extent of Rs.1,49,00,000/- (rupees one crore
forty-nine lakhs), during the period when the first respondent was
working as Junior Accountant with the petitioner Housing Board.
Consequently, three First Information Reports were registered in
the year 2002 for the periods between 1995-1998, 1998-2001 and
2000-2002, in which the first respondent was arrested and had
remained in custody. It is stated that the criminal prosecutions are
still pending.
6. As noticed above, the first respondent was served with the first
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charge sheet on 10 October, 2002 initiating the disciplinary
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inquiry. Subsequently, on 23 November, 2002, a second charge
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sheet was served on account of wilful absence from 31 August,
2002.
7. The first respondent had instituted a civil suit in which an interim
order was passed restraining the appellant from proceeding in
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respect of the charges, except the charge for wilful absence. It is
stated that a Division Bench of the High Court vide order dated
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18 January, 2010 had upheld this order. Copy of these orders
are not available on record but assertions to this effect are made
in the pleadings on record before us.
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8. By ex parte order dated 3 January, 2003, the first respondent
was removed from service under Rule 86(3) of the Rajasthan
Service Rules on the ground of wilful absence. Departmental
appeals preferred by the first respondent were dismissed.
9. The first respondent had then preferred a writ petition before the
High Court of Rajasthan at Jaipur, which was not entertained on
the ground of alternative remedy before the Labour Court. This
order attained finality as the review petition, intra-court appeals
and Special Leave Petition were dismissed.
10. The first respondent thereupon approached the Labour Court vide
LCR No. 38 of 2011 with an interim application for stay of the
dismissal order, which application was rejected by the Labour
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Court vide order dated 29 May, 2013.
11. The first respondent had preferred Writ Petition No. 9480 of 2013
before the High Court of Rajasthan at Jaipur challenging the
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interim order of the Labour Court dated 29 May, 2013. The
present Special Leave Petition arises from this writ petition.
12. In the meanwhile, the first respondent for some unfathomable
reason filed Writ Petition (Civil) No. 8611 of 2007, wherein vide
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order dated 9 September, 2009 a Single Judge of the Rajasthan
High Court had issued directions that the remaining part of the
inquiry should be completed within four months. This order was
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upheld by a Division Bench vide order dated 9 May, 2011.
These orders were passed notwithstanding the fact that the first
respondent was already removed from service on the ground of
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wilful absence vide order dated 3 January, 2003.
13. In view of the aforesaid directions, the disciplinary proceedings on
the first charge sheet recommenced and the inquiry report dated
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28 May, 2012 held that all charges stood proved. Consequently,
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order dated 25 October, 2013 dismissing the first respondent
was passed.
14. The first Respondent did not prefer a statutory appeal to challenge
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the order of dismissal dated 25 October, 2013. Neither did he
make it a subject matter of challenge before the Labour Court. He
invoked writ jurisdiction vide Civil Writ Petition No. 19668 of 2013
filed before the Rajasthan High Court.
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15. In the meanwhile, the Labour Court by its order dated 5
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November, 2015 upheld the first order of dismissal dated 3
January, 2003 on the ground of wilful absence. This order was
passed pursuant to the directions of the learned Single Judge in
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the order dated 23 May, 2014 in Writ Petition No. 9480 of 2013
and of the Division Bench in the impugned order and judgment
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dated 18 May, 2015 in D.B. Civil Special Appeal (Writ) No. 1265
of 2014.
16. The first respondent has preferred Writ Petition No. 5205 of 2016
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against the order of the Labour Court dated 5 November, 2015
which is stated to be pending before a Single Judge of the
Rajasthan High Court.
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17. The second order of dismissal dated 25 October, 2013 was also
made subject matter of challenge by the first respondent
preferring an amendment application in Civil Writ Petition No.
9480 of 2013 in which the challenge was to the interim order
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dated 29 May, 2013 passed by the Labour Court rejecting the
first respondent’s application for stay of the first dismissal order
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dated 3 January, 2003. By order dated 28 November, 2013, the
first respondent was permitted to amend this writ petition to raise a
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challenge to the order of dismissal dated 25 October, 2013.
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18. Writ Petition No. 9480 of 2013 was allowed by the learned Single
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Judge vide order dated 23 May, 2014 by recording detailed
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findings on the first inquiry resulting in the order dated 3 January,
2003, the fairness or propriety of the inquiry proceedings to prove
the charge for wilful absence. This was notwithstanding the fact
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that order under challenge dated 29 May, 2013 passed by the
Labour Court was only an interim order. At the same time, the
learned Single Judge held that the appellant was set at liberty to
adduce the evidence before the Labour Court. Issue and question
of wilful absence on merits was, therefore, left open for the Labour
Court to decide.
19. Thereafter, the learned Single Judge examined challenge to the
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dismissal order dated 25 October, 2013 and held that it was
passed on the basis of the inquiry report which was wholly illegal,
arbitrary and unconstitutional on the ground that sufficient
opportunity was not granted to the first respondent to defend the
charge sheet. Notwithstanding the direction(s) of the High Court
referred in paragraph 12 above to conclude the inquiry
proceedings within four months, the disciplinary authority, it was
observed, should have awaited outcome of the contempt petitions
that had been preferred by the first respondent. Further, the
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appellant had failed to produce original vouchers, 544 in number,
which it was held had been verified by different officers.
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20. Impugned order and judgment dated 18 May, 2015 passed by
the Division Bench of the High Court has referred to the reasons
given by the Learned Single Judge specifically rejecting the
contention of the first respondent that the Labour Court lacked
jurisdiction for the first respondent was not a ‘ workman’.
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21. Impugned judgment dated 18 May, 2015 also records that the
Labour Court when seized of the matter had afforded
opportunities to the first respondent to cross-examine the
prosecution witnesses but on account of repeated adjournments
sought by him, the Labour Court was unable to proceed with the
matter. For the reasons elucidated in paragraph 18 above, we
would observe and hold that the Division Bench has not made
final and conclusive findings on the charge and allegation of wilful
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absence, which had resulted in the order of dismissal dated 3
January, 2003. Findings as recorded in the impugned order would
be treated as tentative and prima facie and not final or conclusive,
for otherwise there was no reason and ground for the learned
Division Bench to affirm the direction that the appellant was at
liberty to adduce evidence before the Labour Court.
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22. The Division Bench referring to the second order of dismissal
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dated 25 October, 2013 observed that the same could not have
been passed and at best findings could be recorded on the
charges that were not subject matter of the departmental inquiry in
the first proceedings, as criminal cases were pending against the
first respondent. Even if there were some additional charges on
which the departmental inquiry was made, the second order of
dismissal could not have been passed. This order of the Division
Bench, however, does not specifically clarify the position as to the
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legal effect of the second order of dismissal dated 25 October,
2013, and the respective rights of the parties. Further, the
findings on merits recorded by the learned Single Judge on the
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second order of dismissal dated 25 October, 2013 were not
interfered with.
23. Notwithstanding the said position, with reference to the second
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order of dismissal dated 25 October, 2013, in para 8 and 9 of the
impugned order, the Division Bench has commented on some
other writ petitions including Writ Petition No.1511 of 2008 filed by
the petitioner by which departmental enquiry proceedings against
the charges of embezzlement of funds, etc. were separated and it
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was observed that as the first dismissal order dated 3 January,
2003 had been challenged before the Labour Court, it was open to
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the first respondent to challenge the separation order before the
Labour Court that was seized of the matter. Two writ petitions filed
by the first respondent challenging special audit of the accounts
were dismissed. D.B. Special Appeal No. 1636 of 2014 in which
the first respondent had sought prayer for suspension allowance
was dismissed observing that the issue was not required to be
considered by the Single Judge and it was open to the first
respondent to raise the issue before the Labour Court. Lastly,
reference was made to Special Criminal Misc. Petition No. 525 of
2007, 539 of 2007 and 1127 of 2009 in which interim orders had
been passed staying the criminal proceedings and arrest.
Reference was also made to Special Criminal Misc. Petition No. 8
of 2015 in which again arrest of the first respondent had been
stayed in respect of a fourth criminal case filed against him. It was
directed that the four petitions would be clubbed and listed before
the appropriate bench for orders.
24. Impugned judgment also noticed that original records of
investigation had been summoned by the High Court in the first
three criminal miscellaneous matters and since 2007 stay orders
had been in operation. These original records of investigation
summed and retained by the High Court had gone missing. The
Registrar General was directed to carry out enquiries through the
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Registrar (Vigilance) with regard to the missing records and
submit a report to the Registrar General, that would be placed
before the Chief Justice on administrative side.
25. From the aforesaid discussion, it is apparent that the Division
Bench and the Single Judge had failed to notice and did not
consider that Civil Writ Petition No. 9480 of 2013 was primarily
directed against an interim order passed by the Labour Court
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refusing to stay the first order of dismissal dated 3 January,
2003. They have dealt with the issue and commented on the
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order dated 3 January, 2003 as if the order under challenge
before the Writ Court and the Appeal Court was the final order
passed by the Labour Court. As noticed earlier, the Labour Court
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by its final order dated 5 November, 2015 has upheld the first
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order of dismissal dated 3 January, 2003. The order dated 5
November, 2015 has been challenged by the first respondent in
Writ Petition No. 5205 of 2016 which is still pending before the
Single Judge. As elucidated above, the findings and observations
of the learned Division Bench and the Single Judge cannot be
regarded as findings and observations on the merit or demerits of
the charge of wilful absence as it was left to the appellant to lead
evidence and prove the charge before the Labour Court.
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26. Once the order of dismissal dated 3 January, 2003 had been
passed, the High Court should not have directed continuation and
conclusion of the departmental proceedings pursuant to another
charge-sheet relating to embezzlement of funds, irregular
payments, missing vouchers, etc. On the said aspect, the learned
Division Bench and the Single Judge in the orders under
challenge have rightly observed that there cannot be two orders of
dismissal, yet have erroneously commented upon the enquiry
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report and the second order of dismissal dated 25 October, 2013.
This second order of dismissal should have been set aside on the
limited ground and reason that there cannot be two orders of
dismissal, leaving it open to the appellant to take steps and
recommence proceedings in the charge-sheet relating to
embezzlement of funds, irregular payments and missing vouchers
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etc., should the first order of dismissal dated 3 January, 2003 be
set aside. In other words, departmental proceedings vide the
charge-sheet relating to embezzlement, irregular payments and
missing vouchers, etc. should, for the present, be kept in
abeyance. Reference in this regard can be made to the
Judgement of this Court in State of Maharashtra v. Vijay Kumar
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Aggarwal and Another wherein it has been held as under:
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(2014) 13 SCC 198
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“11...The employee who has already been dismissed
from service cannot be imposed any other penalty on
the conclusion of inquiry pertaining to the charge-sheet
dated 6-7-1988. Therefore, at this stage no purpose is
going to be served to continue with the inquiry into the
said charge-sheet. At the same time, it is also to be
borne in mind that Respondent 1 has challenged
dismissal order and the matter is pending before the
Tribunal. In case the said dismissal is set aside by the
Tribunal and/or the High Court/this Court and
Respondent 1 is reinstated in service as a result
thereof, the relationship of employer-employee
between the parties shall also stand restored. In that
eventuality, it would be permissible for the appellant to
proceed with the inquiry relating to charge-sheet dated
6-7-1988 as well...”
27. Accordingly, the present appeal is partly allowed whereby we
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agree that the second order of dismissal dated 25 October, 2013
could not have been passed, and accordingly we would set aside
all observations and findings recorded by the Division Bench and
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Single Judge with regard to the enquiry report dated 28 May,
2012 with the direction that further proceedings pursuant to the
said enquiry report would be kept in abeyance and can be
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recommenced in case the first dismissal order dated 3 January,
2003 is set aside and quashed. In case of recommencement, it
will be open to the first respondent to raise objections to the
enquiry report before the disciplinary authority, who would
consider the said objections. It would be equally open to the
disciplinary authority to rectify and correct mistakes or lapses, if
any, and proceed in accordance with law. Findings and
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observations in the impugned order(s) would not restrict the
disciplinary authority from examining the charges and taking a
decision nor the first respondent from exercising his right to
defend. We have not made any observation on the merits of the
enquiry report or the procedure which has to be followed.
28. On the first aspect we would only make an important and relevant
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clarification in view of the final order of the Labour Court dated 5
November, 2015. The impugned judgment of the Division Bench,
upholding the order of the Single Judge setting aside and
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quashing the order of the Labour Court dated 29 May, 2013
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refusing to stay the first order of dismissal dated 3 January, 2003
had not directed reinstatement of the first respondent. The Labour
Court was to proceed in the matter and record findings on merits.
As noticed above, the Labour Court has already by its final order
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dated 5 November, 2015 upheld the first order of dismissal dated
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3 January, 2003 and against this order the first respondent has
preferred Writ Petition No. 5205 of 2016 stated to be pending
before the Single Judge. This writ petition would be decided by
the learned Single Judge on merits without being influenced by
the impugned order(s) under challenge in the present appeal. We
also clarify that we have not interfered with the directions given in
the impugned judgment in paragraphs 10 to 19. The same would
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be good and valid and will continue as directions and findings, in
spite of the present order.
29. Accordingly, the instant appeals are allowed in the above terms
and disposed of. In the facts of the case, there would be no order
as to costs.
B. SPECIAL LEAVE PETITION (CIVIL) NO. 6342 OF 2017
30. We do not find any good ground and reason to interfere with the
impugned order which only reduced the quantum of costs. The
Special Leave Petition is dismissed. We clarify we have not made
any comments on merits of the dispute between the parties.
.......................................................J.
(MOHAN M. SHANTANAGOUDAR)
.....................................................J.
(SANJIV KHANNA)
NEW DELHI;
JULY 29, 2019.
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