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CASE NO.: Appeal (civil)  3251 of 2008

PETITIONER: SANTOSH KUMAR PANDEY  

RESPONDENT: PRADESHIYA INDUSTRIAL & INVESTMENT CORPORATION OF U.P. LTD.

DATE OF JUDGMENT: 02/05/2008

BENCH: S.B. SINHA & LOKESHWAR SINGH PANTA

JUDGMENT: JUDGMENT

O R D E R [Arising out of SLP(C) No. 17418/2006]

1.      Leave granted. 2.      Appellant is aggrieved by a portion of the order dated 8.8.2006 passed by the Hight  Court of Judicature at Allahabad, Lucknow Bench, whereby it was directed:

\023So far as the 50%  back wages is concerned, it shall be made  available to the Respondent provided the enquiry concludes in his  favour by the competent authority.\024

3.      Appellant was dismissed from services of the respondent.  He questioned the validity   of the said order of dismissal by filing a writ petition. The said order of termination  was set aside by a learned single Judge of the High Court with a direction to the  respondent for payment of 50% back wages. The period between the dismissal and  reinstatement was also directed to be treated as the period spent on duty, determining  other service benefits.  The respondent preferred an intra-Court appeal therefrom.   

4.      A Division Bench of the High Court, while affirming the finding of the learned  Single Judge that the enquiry proceedings pursuant whereto and in furtherance  whereof an order of dismissal was passed, was violative of the principles of natural  justice, issued the afore-mentioned direction.  

5.      The learned counsel appearing on behalf of the respondent has relied upon the  decision of this Court in Managing Director, ECIL, Hyderabad and Ors. vs. B.  Karunakar and Ors. [1993 (4) SCC 727], wherein it was opined:

       \023Hence, 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 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  the  

non-supply of the report. If after hearing the parties, the  Court/Tribunal comes to the conclusion that 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

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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 reinstatement 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 reinstatement 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 reinstated, the authority should be at liberty to decide  according to law how it will treat the period from the date of  dismissal till the reinstatement and to what benefits, if any and the  extent of the benefits, he will be entitled.  The reinstatement made as  a result of the setting aside of the inquiry for failure to furnish the  report, should be treated as a reinstatement 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.\024  

6.      Karunakar (supra), therefore, is not an authority for the proposition that the High  Court should preempt the exercise of jurisdiction of a Competent Authority. It was  for the  Competent Authority to deal with the matter.  In the event the appellant is  exonerated from the charges, he may not be found to be disentitled from claiming the  entire back wages.  What would be the nature of punishment even if he is found guilty  in the disciplinary proceedings, cannot be a matter of surmises and conjecture.   Furthermore the respondent did not succeed even before the Division Bench of the  High Court as regards the finding of the learned Single Judge that the departmental  proceeding was vitiated in law, as being opposed to the principle of natural justice.   

7.      In that view of the matter, the impugned judgment cannot be sustained and it is set  aside, leaving the parties to take recourse to such remedies which are available to  them in law, inter alia, in the light of the observations made by this Court in  Karunakar (supra), if the same is found to be applicable.   

8.      The appeal is allowed accordingly. No costs.