The State Of U.P. and Others vs Brijesh Chandra and Another

Sunil Kr Tiwari

We have heard learned counsels appear for the parties. The respondent No. 1 was serving as a Constable in Civil Police. He absented from duties from 17.11.2002, after receiving an information from his son that his wife was seriously ill. He did not approach the Inspector, Police Line, Rampur, nor any application for leave was forwarded by the C.O. concerned. Without any intimation, he had left to attend his wife. He returned back after 318 days, and joined on 01.10.2003. A charge-sheet was served on him, on which a departmental enquiry was conducted, in which respondent No. 1 was found guilty, and the punishment order was passed on 01.12.2004, by which he has been dismissed from service.

A departmental appeal, before the Deputy Inspector of General of Police, Moradabad Range, Moradabad, was dismissed on 29.06.2005. He preferred a revision, which was also dismissed on 13.02.2006.

The claim petition filed by respondent No. 1, was allowed by the Public Services Tribunal, Lucknow, directing the petitioners, to reinstate respondent No. 1 in service with all consequential benefits of service. The claim petition was allowed on the ground that the respondent No. 1 (petitioner in the claim petition) has been denied reasonable opportunity of defence, in not supplying to him relevant documents.

The State of U.P. has challenged the order of the Tribunal dated 02.12.2009 in Claim Petition No. 655 of 2006 (Brijesh Chandra V. State of U.P. and Ors.) on the ground that in case the Tribunal choses to set aside the punishment order on the ground of denial of reasonable opportunity, it should have remanded the matter back to the department, to hold fresh enquiry.

In Union of India (UOI) Vs. Y.S. Sadhu, Ex-Inspector, , the Supreme Court has held that where the Court finds that the principles of natural justice have not been followed, it is not necessary to reinstate the delinquent employee. It was held in Y.S. Sadhu''s case that if the employees succeeds in the fresh enquiry, and is directed to be reinstated, the disciplinary authority should be at liberty to decide according to law as to how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any, he will be entitled. In Chairman-Cum-M.D., Coal India Ltd. and Others Vs. Ananta Saha and Others, , the Supreme Court has held that when the earlier disciplinary enquiry is vitiated on technical grounds, the delinquent employee can simply be reinstated, put under suspension and will be entitled to subsistance allowance till conclusion of enquiry, as per service rules. The question of back wages may be considered only after conclusion of enquiry.

In the present case, we do not find any exceptional circumstances for which the departmental enquiry may not be conducted again after the Tribunal set aside the disciplinary enquiry on technical grounds. The writ petition is partly allowed to the extent that the respondent No. 1 after his reinstatement in service, may be subjected to fresh enquiry, at the discretion of the Disciplinary Authority, after following the principles of natural justice. The judgment of U.P. Public Service Tribunal dated 02.12.2009, in Claim Petition NO. 655 of 2006, is working accordingly. The question of back wages will be considered, after, the conclusion, and subject to result of fresh departmental enquiry.