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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