Md. Sadre Alam vs State Of Bihar

Heard learned counsels for the respective parties.

In the instant petitioner, petitioner has prayed for the following relief/reliefs:

“i. Fro quashing the order vide memo no. 4168/R.K. a 16.8.2003 issued by the Police Superintendent Gaya which was issued in pursuance of Nawada District order no. 1305 of 2003 and Gaya District order no. 2625/03 and by which the petitioner has been terminated from Service Nawadah Distt. Order no. 1305/05 and Gaya District order no. 2625/03 has not been served upon him.

ii. For any relief or reliefs as your Lordships may deem fit and proper in the facts and circumstances of the case.”

The petitioner is stated to have been appointed on 04.01.1991 as a Constable. In the year 2003 the police department noticed that initial appointment of the petitioner was not in accordance with law, therefore, concerned authority proceeded to terminate the services of the petitioner on 16.08.2003. Feeling aggrieved and dissatisfied with the order of termination dated 16.08.2003, the petitioner has exhausted the remedy of filing appeal and representations before the next higher authorities on 28.08.2003, 31.02.2004 and 15.06.2004. There was inaction on the part of the higher authorities insofar as redressing the grievance of the petitioner.

In this backdrop and perusal of the records, it is evident that no inquiry has been held before terminating the services of the petitioner. It is to be noted that petitioner was appointed on 04.01.1991 and termination is dated 16.08.2003. During the interregnum period, the petitioner has earned permanent status as a government servant, therefore, before terminating the services of the petitioner, the concerned authority/disciplinary authority should have resorted to in initiating inquiry under the relevant disciplinary Rules/Regulations.

In the light of these facts and circumstances, petitioner has made out a case so as to interfere with the impugned order dated 16.08.2003. Accordingly impugned order dated 16.08.2003 is set aside. Concerned authority is at liberty to take further action, if any, and if it is warranted at this distance of time. Such proceedings shall be completed within a period of six months from the date of receipt of this order.

Order of termination dated 16.08.2003 is set aside on technical ground that no inquiry has been held and the matter has been remanded. In that context, it is necessary to take note of decision of the Hon’ble Apex Court in the case of ECIL vs. B. Karunakaran reported in (1993) 4 SCC 727 read with Chairman-cum-Managing Director, Coal India Ltd. vs. Ananta Saha and Ors. reported in (2011) 5 SCC 142, paragraph Nos. 46 to 50 which reads as under:

“46. In the last, the delinquent has submitted that this Court must issue directions for his reinstatement and payment of arrears of salary till date. Shri Bandopadhyay, learned Senior Counsel appearing for the appellants, has vehemently opposed the relief sought by the delinquent contending that the delinquent has to be deprived of the back wages on the principle of “no work—no pay”. The delinquent had been practising privately i.e. has been gainfully employed, thus, not entitled for back wages. Even if this Court comes to the conclusion that the High Court was justified in setting aside the order of punishment and a fresh enquiry is to be held now, the delinquent can simply be reinstated and put under suspension and would be entitled to subsistence allowance as per the service rules applicable in his case. The question of back wages shall be determined by the disciplinary authority in accordance with law only on the conclusion of the fresh enquiry.

It is a settled legal proposition that the result of the fresh enquiry in such a case relates back to the date of termination. The submissions advanced on behalf of the appellants that the result of the enquiry in such a fact situation relates back to the date of imposition of punishment, earlier stands fortified by a large number of judgments of this Court and particularly in R. Thiruvirkolam v. Presiding Officer [(1997) 1 SCC 9 : 1997 SCC (L&S) 65 : AIR 1997 SC 633] , Punjab Dairy Development Corpn. Ltd. v. Kala Singh [(1997) 6 SCC 159 : 1997 SCC (L&S) 1434 : AIR 1997 SC 2661] and Graphite India Ltd. v. Durgapur Projects Ltd. [(1999) 7 SCC 645].

In ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30 : (2009) 1 SCC (L&S) 126 : AIR 2009 SC 161] , this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the enquiry afresh from the stage where it stood before the alleged vulnerability surfaced. However, for the purpose of holding fresh enquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages, etc. is determined by the disciplinary authority in accordance with law after the fresh enquiry is concluded.

The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide U.P. SRTC v. Mitthu Singh [(2006) 7 SCC 180 : 2006 SCC (L&S) 1590 : AIR 2006 SC 3018] , Akola Taluka Education Society v. Shivaji [(2007) 9 SCC 564 : (2007) 2 SCC (L&S) 679] and Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale [(2009) 2 SCC 288 : (2009) 1 SCC (L&S) 372].

In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date of first termination order till date, cannot be entertained and is hereby rejected. In case the appellants choose to hold a fresh enquiry, they are bound to reinstate the delinquent and, in case, he is put under suspension, he shall be entitled to subsistence allowance till the conclusion of the enquiry. All other entitlements would be determined by the disciplinary authority as explained hereinabove after the conclusion of the enquiry. With these observations, the appeal stands disposed of. No costs.”

In fact, Hon’ble Apex Court has reiterated the principles laid down in the case of ECIL vs. B. Karunakaran reported in (1993) 4 SCC 727 in the later decision in the case of State of Uttar Pradesh & Ors. vs. Prabhat Kumar reported in 2022 Live Law SC 736.

Having regard to the fact that petitioner cannot be taken back to duty as he has already attained more than 60 years of age, in the event of any proceedings is in favour of the petitioner insofar as validity of his initial appointment dated 04.01.1991 in a departmental proceedings, in that event petitioner is entitled to all monetary benefits from the date of termination till the date of retirement (as if he was in service), the same shall be calculated and disbursed within a period of three months from the date of passing of afresh order in a departmental inquiry.