Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2008
(Arising out of S.L.P.(C) No.12115 of 2007)
Union of India ...Appellant
Versus
Y.S. Sadhu, Ex-Inspector ...Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Heard learned counsel for the parties.
2. Leave granted.
3. Challenge in this appeal is to the judgment of a Division
Bench of the Gauhati High Court dismissing the writ appeal
filed by the appellants.
4. Challenge in the writ appeal was to the judgment and
order dated 04.12.2003 passed by learned Single Judge
directing re-instatement of the writ petitioner (respondent
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herein) in service without payment of back wages. The reasons
for which learned single Judge interfered with the order of
dismissal from service was that the witnesses examined earlier
were not produced for cross examination. Punishment was
awarded by the Disciplinary Authority by taking into account
the report submitted by the enquiry officer recording
establishment of charges. The Division Bench concurred with
the findings of the learned Single Judge.
5. In support of the appeal learned counsel for the
appellant submitted that the view taken by learned Single
Judge and the Division Bench is contrary to what has been
stated by this Court in several cases. Learned counsel for the
respondent, on the other hand, submitted that because the
requisite principles of natural justice were not followed,
learned single Judge and the Division Bench had passed the
orders in favour of the respondent-writ petitioner.
6. In Hiran Mayee Bhattacharyya Vs. Secretary, S.M.
School for Girls and Ors. (2002 (10) SCC 293) this Court has
observed as follows :
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“We, therefore, direct the disciplinary authority
to furnish a copy of the enquiry report to the
appellant and then permit her to submit her
representation/explanation to the same and pass
final orders thereafter. However, this will not lead
to reinstatement or to back wages inasmuch as this
Court had decided in the case of Managing Director,
ECIL, Hyderabad Vs. B. Karunakar (1993 (4) SCC
737) that there need be no reinstatement nor back
wages need be paid when the Court directs that the
principles of natural justice should be followed.
We, therefore, remit the matter to the disciplinary
authority, being Secretary, Shibarampur
Madhyamik High School for Girls, Shibarampur,
Calcutta 700061 for the aforesaid purposes. The
termination order already passed will remain, but
subject to the result of the fresh consideration as
directed above”.
7. Similarly, in U.P. State Spinning Co. Ltd. Vs. R.S. Pandey
and Anr. (2005 (8) SCC 264), it was noted as follows:
“The residual question is what would the
appropriate direction in such a case. Stand of the
employer is that it could have justified the order of
termination by adducing any evidence even if it was
held that there was some defect in the departmental
proceedings. The solution is found in what was
stated by this Court in Managing Director, ECIL v.
B. Karunakar, [1993] 4 SCC 737. In paragraph 31,
it was observed as follows:
"In all cases where the enquiry officer's report is not
furnished to the delinquent employee in the
disciplinary proceedings, the Courts and Tribunals
should cause the copy of the report to be furnished
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to the aggrieved employee if he has not already
secured it before coming to the Court/Tribunal and
give the employee an opportunity to show how his
or her case was prejudiced because of non-supply
of the report. If the non-supply of the report would
have made no difference to the ultimate findings
and the punishment given, the Court/Tribunal
should not interfere with the order of punishment.
The Court/Tribunal should not mechanically set
aside the order of punishment on the ground that
the report was not furnished as is regrettably being
done at present. The courts should avoid resorting
to short cuts. Since it is the Courts/Tribunals
which will apply their judicial mind to the question
and give their reasons for setting aside or not
setting aside the order of punishment, (and not any
internal appellate or revisional authority), there
would be neither a breach of the principles of
natural justice nor a denial of the reasonable
opportunity. It is only if the Court/Tribunal finds
that the furnishing of the report would have made a
difference to the result in the case that it should set
aside the order of punishment. Where after
following the above procedure, the Court/Tribunal
sets aside the order of punishment, the proper relief
that should be granted is to direct re-instatement of
the employee with liberty to the
authority/management to proceed with the inquiry,
by placing the employee under suspension and
continuing the inquiry from the stage of furnishing
him with the report. The question whether the
employee would be entitled to the back wages and
other benefits from the date of his dismissal to the
date of his re-instatement if ultimately ordered,
should invariably be left to be decided by the
authority concerned according to law, after the
culmination of the proceedings and depending on
the final outcome. If the employee succeeds in the
fresh inquiry and is directed to be re-instated, the
authority should be at liberty to decide according to
law how it will treat the period from the date of
dismissal till the re-instatement and to what
benefits, if any and the extent of the benefits, he
will be entitled. The re-instatement made as a result
of the setting aside the inquiry for failure to furnish
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the report, should be treated as a re-instatement for
the purpose of holding the fresh inquiry from the
stage of furnishing the report and no more, where
such fresh inquiry is held. That will also be the
correct position in law."
In view of above, we set aside the order of
learned Single Judge as affirmed by the Division
Bench by the impugned judgment and direct that
within a period of four months, the enquiry shall be
completed by starting from the stage of service of
show cause notice and consideration of the reply, if
any, filed in accordance with the standing orders
holding the field. The respondent No. 1 shall be re-
instated to service but without any back wages and
other service benefits and his re-instatement shall
be solely for the purpose of completing the
departmental proceedings. His entitlements, if any,
would be adjudicated by the authorities depending
upon the result of the disciplinary proceedings.”
8. Keeping in view the aforesaid position of law indicated in
the aforesaid decisions, we are of the view that the course
adopted in the two cases above, is to be followed. There shall
not be any reinstatement but the proceedings shall continue
from the stage where it stood before the alleged vulnerability
surfaced.
9. Learned counsel for the writ petitioner-respondent
submitted that he has already retired and, therefore, he is not
interested in pursuing the remedy. He may be given the
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chance of moving the authorities for varying the order of
termination to one of compulsory retirement. If any
representation in this regard is made to the concerned
authority, the same shall be considered in its proper
perspective. We express no opinion in that regard.
10. The appeal is allowed to the aforesaid extent.
……..…….............................J.
(Dr. ARIJIT PASAYAT)
……...…
….............................J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi:
September 22, 2008
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