Col. D.S. Raju vs R.V. Narasimha Raju and others

This writ appeal arises out of an order of the learned single Judge allowing Writ Petition No.12759 of 1999 and quashing the show-cause notice issued by the 2nd respondent-college, vide its proceedings Roc.No.Ol/Bl/99, dated 7-6-1999 with liberty to conduct a fresh enquiry, from the stage it was quashed.

The 2nd respondent-college is the appellant herein. The parties are hereinafter referred to, for convenience sake, as they are arrayed in the writ petition.

The facts, which gave rise to this appeal, in brief, are :

The writ petitioner is working as a Junior Librarian in the 2nd respondent-college. He was placed under suspension with effect from 27-3-1996 pending departmental enquiry into his alleged misconduct of misbehaviour with the principal of the college.

An Enquiry Committee, consisting of five members, of whom three are the members of the Managing Committee of the College and two outsiders, was constituted by the 2nd respondent-college to conduct an enquiry into the alleged misconduct. The writ petitioner objected to the composition of the said Committee on the ground that there was no nominee of the Government. Inspite of the said objection, the 2nd respondent-college chose to proceed with the enquiry, extended the period of suspension, and sought to terminate the services of the petitioner. On the application made by the writ petitioner, the Commissioner of Technical Education, the 1st respondent in the writ petition, by his order dated 6-11-1996 directed the 2nd respondent-college to conduct a fresh enquiry with a nominee of the Government in the Enquiry Committee and send the report immediately. The validity of that order was questioned by the writ petitioner before this Court by filing Writ Petition No.26396 of 1996. In that writ petition, notice before admission was ordered by this Court on 11-12-1996 with a direction to post the matter on 27-12-1996.

When the 2nd respondent-college sought to proceed with the enquiry, the petitioner requested postponement of the enquiry on the ground of pendency of the said writ petition filed by him. However, the writ petition was not listed for hearing on 27-12-1996 and could not be taken up for hearing subsequently as Winter Vacation intervened from 1st January, 1997. Inspite of pendency of the said writ petition, the 2nd respondent-college proceeded with the enquiry, ex parte, and dismissed the petitioner from service by an order dated 11-1-1997. Questioning the validity of the same, the petitioner filed Writ Petition No.379 of 1997. That writ petition was allowed by a learned single Judge of this Court on 15-3-1999 holding that the enquiry against the petitioner was in violation of the principles of natural justice. Accordingly, the dismissal order was set aside.

As there was no specific direction as to how the suspension period has to be treated, the writ petitioner filed Writ Appeal No.544 of 1999 against the said order of the learned single Judge. That writ appeal was dismissed on 13-4-1999 holding that "when once the order of termination is set aside, in the ordinary course, all the consequences would follow, in accordance with the Rules". Thereafter the petitioner made a representation to the 2nd respondent-college requesting reinstatement into service and payment of arrears of salary from 27-3-1996. Instead of acceding to the aforesaid request of the petitioner, the 2nd respondent-college issued a show-cause notice on 3-4-1999.

The petitioner then submitted a representation on 14-4-1999 pointing out that for the two and a half years he was kept out of job, he was not paid the salary and requesting the 2nd respondent to pay full salary, so that he could overcome the financial difficulties and starvation. He further stated, therein, that he could submit his explanation to the show-cause notice only after payment of the amount due to him. However, instead of acceding to the said request, the 2nd respondent issued proceedings dated 15-5-1999 stating that the petitioner was kept under deemed suspension from 12-1-1997 to 15-6-1999. A further proceeding was issued by the 2nd respondent on 17-5-1999 purporting to constitute a fresh enquiry committee and informing the petitioner that the Committee would meet on 25-5-1999 at 4 p.m. The petitioner was directed to appear before the said Enquiry Committee. The petitioner then submitted a representation on 20-5-1999 again requesting the 2nd respondent-college to reinstate him into service and to pay him the arrears of salary to enable him to overcome the financial difficulties and to submit his explanation to the show-cause notice and also to attend the enquiry. It appears that, thereafter, the 2nd respondent-college has deposited an amount of Rs.48,045.60 ps., into the account of the petitioner and informed him of the same by its letter dated 22-5-1999, which was received by the petitioner on 28-5-1999. By another letter dated 25-5-1999 the 2nd respondent-college directed the petitioner to attend the enquiry on 26-5-1999, but, it appears, that the said letter was received by the petitioner only on 28-5-1999, by which time the proposed enquiry, mentioned in the said letter, was over. Since the petitioner failed to appear before the Enquiry Committee, the enquiry was conducted in his absence and a report was submitted by the Committee. Basing on the said report, the 2nd respondent-college issued the impugned proceedings in Roc.No.601/81/99, dated 7-6-1999 calling upon the petitioner to show-cause as to why he should not be dismissed from service. It is that notice, which has been challenged by the writ petitioner in the writ petition.

On a consideration of the entire material on record and the rival contentions, the learned single Judge found that inspite of the petitioner''s representations dated 14-4-1999 and 20-5-1999 for reinstatement and payment of full back wages, the 2nd respondent-college did not pay even the subsistence allowance before conducting the enquiry and the petitioner was only informed about the depositing of certain amount to his credit into the Bank by the 2nd respondent''s letter dated 22-5-1999, which was received by him only on 28-5-1999; but, in the meanwhile, an exports enquiry was conducted and the Enquiry Committee has submitted its report, basing upon which the impugned show-cause notice was issued by the 2nd respondent-college. Applying the principle laid down by the Supreme Court in Ghanshyam Das Shrivastava Vs. State of Madhya Pradesh, , that non-payment of subsistence allowance amounts to denial of reasonable opportunity to attend ihe enquiry, the learned Judge held (hat the enquiry, which was conducted on 26-5-1999, was in utter violation of the principles of natural justice and the petitioner was deprived of a reasonable opportunity to participate in the enquiry. Accordingly, the learned Judge allowed the writ petition setting aside the impugned show-cause notice; however, giving liberty to the 2nd respondent-college to conduct enquiry afresh from the stage it was quashed after giving reasonable opportunity to the petitioner.

In this appeal, Sri V. Venkata Ramana, the learned Counsel for the 2nd respondent-college (appellant herein), challenged the validity of the aforesaid order passed by the learned Judge, strenuously contending that:

(i) The 2nd respondent-college was under no legal obligation to pay salary to the petitioner, for the period during which he was kept out of service (i.e., back wages), on his reinstatement into service pursuant to the order of this Court in Writ Petition No.379 of 1997 as the eligibility of the petitioner for the same has to be decided at the time of making final orders in the pending disciplinary proceedings. In support of this contention, the learned Counsel relied upon the observations of the Constitutional Bench of the Supreme Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., ; and

(ii) In any event, the principle that non-payment of subsistence allowance amounts to denial of reasonable opportunity, will not apply to a case like the present one where the petitioner was not paid back wages, pending fresh enquiry.

We are not impressed by either of the said contentions. As already noted, a Division Bench of this Court, consisting one of us (the Honourable Chief Justice Sri M.S. Liberhan), while dismissing Writ Appeal No.544 of 1999 filed by the petitioner against the order of the learned single Judge in Writ Petition No.379 of 1997, categorically observed that "when once the order of termination is set aside, in the ordinary course, all the consequences would follow, in accordance with the Rules". Consequently, the 2nd respondent-college was under a legal obligation to reinstate the petitioner with all attendant benefits like payment of back wages. Inspite of the same, the 2nd respondent-college did not pay the full salary to the petitioner for the period during which he was kept out of service even though he made persistent representations to that effect. Such was not the case in B. Karunakar''s case (supra), wherein the Hon''ble Supreme Court, in the context of non-supply of Enquiry Officer''s report, issued certain guidelines regarding the relief that can be granted by the Courts in directing reinstatement of the employee with liberty to the management to proceed with the enquiry by placing the employee under suspension and continuing the enquiry from the stage of furnishing him with the report. In our considered view, the said observations of the Supreme Court do not apply to the facts of the present case.

The second contention advanced by the learned Counsel for the 2nd respondent-college that unlike non-payment of subsistence allowance, non-payment of full back wages will not amount to deprival of reasonable opportunity, is not only untenable but is also misconceived, for it could be an anomaly to hold that nonpayment of part of the salary amounts to deprival of reasonable opportunity, but denial of whole of the salary will not. In our considered view, such a contention can never be countenanced by this Court. We are of the considered view that the principle that non-payment of subsistence allowance amounts to deprival of reasonable opportunity to participate in the enquiry, will apply on all force to the facts of this case.

For the aforementioned reasons, we do not find any merit in this writ appeal and it is accordingly dismissed; but, in the circumstances, without costs.