AI Structured Summary
Not yet generated for this judgment
Judgment
The matter is taken up through video conferencing.
This review petition has been filed by the petitioner seeking review of the order dated 22.05.2017, passed by a Division Bench of this court in WA
259/2015.
The brief facts of the case are that a writ petition, being WP(C) 3462/2009, was filed by the present review petitioner, who at the relevant point of
time was working as a security guard under the NEEPCO, at Kopili Hydro Electric Project, Umrangso, in the district of Dima Hasao. In the writ
petition the petitioner had challenged the order dated 08.01.2004 passed by the NEEPCO authorities, whereby a major penalty of removal from
service was imposed upon the petitioner. The learned Single Judge was of the opinion that in this case copy of the enquiry report was not furnished to
the petitioner and, hence, there has been violation of principle of natural justice and fair play. Consequently, the learned Single Judge allowed the writ
petition by order dated 27.04.2015, with the following observations and directions:
“36. Having regard to the discussions made above, Court is of the considered opinion that the departmental proceeding initiated against
the petitioner till the stage of rejection of his appeal stood vitiated by violation of the principles of natural justice and non-observance of
procedural fairness. In the ordinary course, Court would have remanded the matter to the disciplinary authority to proceed from the stage
of furnishing a copy of the inquiry report to the petitioner and seeking his response, but in the present case, Court is reluctant to follow this
course of action for two reasons. Firstly, petitioner was dismissed from service on 08.01.2004, which is more than 11 years ago; remanding
the matter back to the disciplinary authority at such a belated stage will only prolong the agony of the petitioner. Secondly, remand to the
disciplinary authority would be a useless formality when the head of the organization i.e., the CMD, NEEPCO has already taken the view in
the appellate order, though not communicated, that the penalty imposed was justified. In such circumstances, it would meet the ends of
justice, if the order of penalty is set aside and the petitioner is directed to be reinstated in service.
In a recent decision, a Division Bench of this Court in Commissioner & Ors. Vs. Shri Haren Chandra Das (WP(C) No.5310/2008),
decided on 04.03.2015 held that when the initiation of inquiry and imposition of penalty is arbitrary and there was no basis to initiate any
inquiry in the matter, the rule of no work no pay cannot be applied. In the facts of that case, it was held that the employee would be entitled
to full back wages on reinstatement with continuity of service till superannuation.
In the present case, this Court has not gone into the merit of the 3 charges framed against the petitioner. Interference has been made
because of violation of the principles of natural justice and lack of procedural fairness. In such circumstances, Court is of the view that it
will meet the ends of justice, if petitioner is paid 50% of the back wages. Accordingly, impugned order of penalty dated 08.01.2004 and
order of the appellate authority dated 20.03.2009 are set aside and quashed. Petitioner shall be reinstated in service with continuity of
service and all other benefits. He shall be entitled to 50% of the back wages.
Writ petition is accordingly allowed. No costs.â€
Aggrieved by the order passed by the learned Single Judge, the employer NEEPCO filed a writ appeal, being WA 259/2015, before a Division
Bench of this Court and the Division Bench of this Court was of the opinion that merely because a copy of the enquiry report had not been served
upon the delinquent employee that itself cannot be a cause for reinstating the employee in service. Relying upon the decision of the Hon’ble Apex
Court in the case of Managing Director, ECIL, Hyderabad vs. B.l Karunakar, reported in (1993) 4 SCC 327, the Division Bench held that the enquiry
should have been continued from the stage of providing a copy of the enquiry report to the delinquent employee. The relevant portion of the order of
the Division Bench reads as under:
“6. The decision of the Supreme Court in Managing Director, ECIL, Hyderabad vs. B Karunakar (supra) is directly on the point. The
relevant paragraph 31 of t he decision reads as under:
‘31. Hence, 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 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.’
From the above quoted decision, it is clear that the Supreme Court has mandated all the courts that when the order of punishment is set
aside on the ground that non-furnishing of enquiry report has caused prejudice to the employee, 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 Supreme Court has also held that 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. According to the Supreme Court 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 Supreme Court has further declared
that the reinstatement made as a result of 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 and this is
the correct position in law.
Thus, in view of the clear position of law laid down by the Supreme Court, the order passed by the learned Single Judge cannot be
sustained. We also disagree with the learned Single Judge that merely because the appeal of the respondent has been dismissed by the
appellate authority remanding the enquiry to the disciplinary authority would be a useless formality. We accordingly direct the appellants to
proceed with the enquiry from the stage of furnishing him with the copy of report. We hope and trust that after receiving all the objections
raised by the respondent against enquiry report, the disciplinary authority will decide the same in accordance with law by a speaking order.
As seen above, since the appellant has already attained the age of superannuation on 30.4.2016, he now cannot be directed to be
reinstated and then to be placed under suspension till the completion of enquiry.
The appeal is allowed to the extent mentioned above.â€
It is reflected from the above order itself that at the time when such order was passed and directions were made by the Division Bench to continue
with the enquiry proceedings against the employee, the employee i.e. the review petitioner before this court had already retired from service having
reached the age of superannuation on 30.04.2016. The employee, i.e. the review petitioner before this court thereafter filed a Special Leave Petition
(No. 23511/2017) before the Hon’ble Apex Court, which was disposed of by the Hon’ble Apex Court on 22.05.2017 by the following order:
“Upon hearing the counsel the court made the following order:
It is submitted by learned counsel for the petitioner that the petitioner had superannuated on 30th April, 2016. He says that under the Rules
the disciplinary enquiry against the petitioner cannot be continued. We find that this submission was not made before the High Court even
though the High Court had heard the matter and decided it on 22nd May, 2017.
Since this question goes to the very root of the continuance of the enquiry, we are of the view that the petitioner may be permitted to file a
review petition in this regard and the High Court may take a decision.
We may mention that learned counsel for the petitioner has referred to Dev Prakash Tewari vs. Uttar Pradesh Cooperative Institutitional
Services Board, Lucknow & Ors. (2014) 7 SCC 260, to contend that the enquiry against the petitioner could not be continued. We do not
make any comment on the decision.
Liberty is granted to the petitioner to file a review petition before the High Court which may be considered without reference to the period
of limitation.
The special leave petition is disposed of accordingly.â€
In the light of the above directions given by the Hon’ble Apex Court, this review petition has been filed with a prayer to review the order
passed by the Division Bench.
We have heard Mr. S. Nath, learned counsel for the review petitioner as well as Mr. D. Senapati, learned Standing Counsel, North East Electric
Power Corporation Limited (NEEPCO), appearing for respondent nos. 1 to 4, at length.
Learned counsel for the review petitioner has relied upon the decision of the Hon’ble Apex Court in Dev Prakash Tewari vs. U.P. Cooperative
Institutional Service Board, Lucknow & Ors, reported in (2014) 7 SCC 260, wherein the Hon’ble Apex Court had held that a departmental
proceeding cannot be initiated or continued after retirement of the employee concerned unless there is such a provision in the service rules.
Learned counsel for the respondent NEEPCO has candidly admits before this court that in the service rules applicable to the review petitioner,
there is no provision under which NEEPCO authorities can continue, or even initiate a departmental proceeding against a retired employee. That being
the position, we are of the opinion that the order of the Division Bench directing continuance of the disciplinary proceeding against the review
petitioner was passed as this relevant aspect was not placed before the Division Bench, nor was the judgment of the Hon’ble Apex Court in Dev
Prakash Tewari (supra) was not placed before the Division Bench of this Court while the matter was taken up by the Division Bench in writ appeal.
Thus we find that there is an error apparent on the face of record and there are grounds for our interference even under this limited jurisdiction of
‘review’.
Apart from the above, there is another aspect of the matter which needs to be considered. While the review petitioner was serving under the
NEEPCO as a security guard, he was charge-sheeted by the NEEPCO authorities with three charges, which are as follows:
“(i) That he made allegations against the doctors of appellants’ hospital regarding denial of treatment to him by them at the behest of
senior officers of the Security Wing (HQ) and that he tried to incite other Security Guards by spreading rumour that the doctors were
indifferent towards him;
(ii) That he failed to pay respect to superiors by not saluting them; and
(iii) That he failed to report on duty at the Guest House despite order of the Manager (Security) to do so.â€
Even looking at the charges above, we do not find that the charges were so grave in nature that, even if proved, it would have called for removal
of the employee from service, which is one of the major punishments. The case of the writ petitioner before this court was that he had to face the
charges and the departmental enquiry as the petitioner had formed a trade union of security guards working under NEEPCO, which was not to the
liking of the NEEPCO authorities. The NEEPCO authorities had even filed application for deregistration of the trade union, which was rejected by the
Registrar. In this background, the disciplinary proceeding was initiated against the petitioner. In any case, whatever be the merit of the case, the
learned Single Judge came to the conclusion that there had been violation of the principles of natural justice and fair play and the writ petition was
allowed with the directions as already referred above.
As to the question why the court did not find it proper to remand the matter back to the disciplinary authorities to proceed from the stage of
furnishing copy of the enquiry report to the petitioner, we find that this was not done as the petitioner was dismissed from service in the year 2004,
which was eleven years ago from the date when the learned Single Judge passed the order and then the learned Single Judge was of the opinion that
remanding the matter back to the disciplinary authority at this belated stage will only prolong the agony of the petitioner. The relevant portion of the
observations made by the learned Single Judge on this aspect is reproduced below:
“36.................In the ordinary course, Court would have remanded the matter to the disciplinary authority to proceed from the stage of
furnishing a copy of the inquiry report to the petitioner and seeking his response, but in the present case, Court is reluctant to follow this
course of action for two reasons. Firstly, petitioner was dismissed from service on 08.01.2004, which is more than 11 years ago; remanding
the matter back to the disciplinary authority at such a belated stage will only prolong the agony of the petitioner. Secondly, remand to the
disciplinary authority would be a useless formality when the head of the organization i.e., the CMD, NEEPCO has already taken the view in
the appellate order, though not communicated, that the penalty imposed was justified. In such circumstances, it would meet the ends of
justice, if the order of penalty is set aside and the petitioner is directed to be reinstated in service.â€
Considering all the relevant aspects of the matter, we are of the opinion that the while the Division Bench passed the order, the judgment of the
Hon’ble Apex Court in Dev Prakash Tewari (supra) was not placed before the Division Bench nor was any rule relating to NEEPCO, when there
was no provision for continuation or initiation of disciplinary proceeding against a retired employee.
In view of the above, we allow the review petition. The order dated 22.05.2017, passed by a Division Bench in WA 259/2015 is hereby recalled.
Let the order of the learned Single Judge dated 27.04.2015 passed in WP(C) 3462/2009 be implemented in accordance with law.