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.

2. Impugned order and judgment dated 18th 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

judgment  of  the  learned  Single  Judge  dated  23rd May,  2014

allowing the writ petition filed by the first respondent- Roshan Lal

Saini, quashing the order dated 3rd January, 2003 passed by the Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 1

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

Single Judge quashing the second order of dismissal dated 25 th

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

on 10th 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 Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 2

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.

5. The  first  respondent,  was  suspended  vide order  dated  17th

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

charge  sheet  on  10th October,  2002  initiating  the  disciplinary

inquiry.  Subsequently, on 23rd November, 2002, a second charge

sheet was served on account of wilful absence from 31st August,

2002.  

7. The first respondent had instituted a civil suit in which an interim

order  was  passed restraining  the  appellant  from proceeding  in Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 3

respect of the charges, except the charge for wilful absence.  It is

stated that a Division Bench of the High Court  vide order dated

18th 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.

8. By  ex parte  order dated 3rd 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

Court vide order dated 29th May, 2013.

11. The first respondent had preferred Writ Petition No. 9480 of 2013

before  the  High  Court  of  Rajasthan  at  Jaipur  challenging  the

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 4

interim  order  of  the  Labour  Court  dated  29th 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

order dated 9th 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

upheld  by  a  Division  Bench  vide order  dated  9th May,  2011.

These orders were passed notwithstanding the fact that the first

respondent was already removed from service on the ground of

wilful absence vide order dated 3rd January, 2003.

13. In view of the aforesaid directions, the disciplinary proceedings on

the first charge sheet recommenced and the inquiry report dated

28th May, 2012 held that all charges stood proved. Consequently,

order  dated  25th October,  2013 dismissing  the  first  respondent

was passed.

14. The first Respondent did not prefer a statutory appeal to challenge

the order of dismissal dated 25th 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.

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 5

15. In  the  meanwhile,  the  Labour  Court  by  its  order  dated  5 th

November,  2015  upheld  the  first  order  of  dismissal  dated  3 rd

January, 2003 on the ground of wilful  absence. This order was

passed pursuant to the directions of the learned Single Judge in

the order dated 23rd May, 2014 in Writ Petition No. 9480 of 2013

and of the Division Bench in the impugned order and judgment

dated 18th 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

against the order of the Labour Court dated 5th November, 2015

which  is  stated  to  be  pending  before  a  Single  Judge  of  the

Rajasthan High Court.

17. The second order of dismissal dated 25th 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

dated 29th May, 2013 passed by the Labour Court rejecting the

first respondent’s application for stay of the first dismissal order

dated 3rd January, 2003.  By order dated 28th November, 2013, the

first respondent was permitted to amend this writ petition to raise a

challenge to the order of dismissal dated 25th October, 2013.

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 6

18. Writ Petition No. 9480 of 2013 was allowed by the learned Single

Judge  vide  order  dated  23rd May,  2014  by  recording  detailed

findings on the first inquiry resulting in the order dated 3rd January,

2003, the fairness or propriety of the inquiry proceedings to prove

the charge for wilful absence.  This was notwithstanding the fact

that order under challenge dated 29th 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

dismissal  order  dated  25th 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

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 7

appellant had failed to produce original vouchers, 544 in number,

which it was held had been verified by different officers.

20. Impugned order and judgment dated 18th 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’.

 21. Impugned judgment dated 18th 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

absence, which had resulted in the order of dismissal dated 3rd

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.

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 8

22. The  Division  Bench  referring  to  the  second  order  of  dismissal

dated 25th 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

legal effect of the second order of dismissal dated 25 th October,

2013,  and  the  respective  rights  of  the  parties.   Further,  the

findings on merits recorded by the learned Single Judge on the

second  order  of  dismissal  dated  25th October,  2013  were  not

interfered with.    

23. Notwithstanding the said position,  with reference to the second

order of dismissal dated 25th 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

was observed that as the first dismissal order dated 3 rd January,

2003 had been challenged before the Labour Court, it was open to

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 9

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

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 10

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

refusing  to  stay  the  first  order  of  dismissal  dated  3rd January,

2003.   They have dealt  with the issue and commented on the

order  dated  3rd 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

by its final order dated 5th November, 2015 has upheld the first

order of dismissal dated 3rd January, 2003.  The order dated 5th

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.

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 11

26. Once the order of  dismissal  dated 3rd 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

report and the second order of dismissal dated 25th 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

etc., should the first order of dismissal dated 3 rd 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

Aggarwal and Another1 wherein it has been held as under:

1  (2014) 13 SCC 198 Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 12

“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

agree that the second order of dismissal dated 25 th October, 2013

could not have been passed, and accordingly we would set aside

all observations and findings recorded by the Division Bench and

Single Judge with regard to the enquiry  report  dated 28 th May,

2012 with the direction that further proceedings pursuant to the

said  enquiry  report  would  be  kept  in  abeyance  and  can  be

recommenced in case the first dismissal order dated 3rd 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

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 13

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

clarification in view of the final order of the Labour Court dated 5 th

November, 2015.  The impugned judgment of the Division Bench,

upholding  the  order  of  the  Single  Judge  setting  aside  and

quashing  the  order  of  the  Labour  Court  dated  29 th May,  2013

refusing to stay the first order of dismissal dated 3 rd 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

dated 5th November, 2015 upheld the first order of dismissal dated

3rd 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

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 14

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.

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 15