M. B. SHAH v. D. D. O. ,malpur — 1980 DIGILAW 56 (GUJ)

B. K. MEHTA, J. ( 1 ) (HIS Lordship after discussing the facts and evidence in the case held that:- As a matter of fact the whole inquiry has been conducted in a slip shod manner and the report of the Inquiry Office is also so laconic and shabby that it could not have been taken as the basis by the District Development Officer to pass any order of penalty much more imposing the extreme penalty of dismissal. His Lordship therefore Held:- that the impugned order of dismissal dated 27-9-1976 was vitiated in as much as it was against the statutory rules and especially Rule 7 of the Gujarat Panchayat Service (Discipline and Appeal) Rules 1964 infringing the principles of natural justice and fair play and therefore void and ineffective and it must therefore be quashed and a declaration be granted accordingly that the impugned order is null and void and ineffective and the petitioner continues in service all along as if no such order bad ever been passed; His Lordship further observed :- ). . . . . . . . . . . . . . . . . . . . . ( 2 ) THE next question which arises is whether this Court should direct the respondent Panchayat to pay all the back wages and to grant benefits accrued to the petitioner during the course of these years as a result of the order being declared null and void ? Mr. Patel appearing for the respondent Panchayat urged that in the matters of employment this Court should not in exercise of its jurisdiction under Article 226 of the Constitution over the orders in quasi judicial proceedings of administrative authority resulting in dismissal of an employee give positive direction for payment to the employee all the full back wages if the order is held to be illegal and consequently quashed. In support of his contention he invited my attention to a decision of the Supreme Court in Civil Appeal No. 274 of 1970 decided on January 16 1980 between Managing Director Uttar Pradesh Warehousing Corporation and Ors v. Vijay Narayan Vadpayee where the order of dismissal of an employee of the appellant Corporation was held to be bad in law as it was made in flagrant violation of all the known principles of natural justice. A contention was raised on behalf of the appellant Corporation that even if the dismissal of the respondent employee was bad in law and liable to be quashed the High Court could not in exercise of its certiorari jurisdiction under Article 226 of the Constitution give further direction that the employee should be reinstated in service with full back wages and therefore the High Court inasmuch as it granted such a declaration it overstepped the bounds of its jurisdiction. Upholding that contention Sarkaria J. speaking for the Court observed as under:-"there appears to be force in this contention. It must be remembered that in the exercise of its certiorari jurisdiction under Art. 226 of the Constitution the High Court acts only in a supervisory capacity and not as an appellate Tribunal. It does not review the evidence upon which the inferior Tribunal proposed to be used its conclusion; it simply demolishes the order which it considers to be without jurisdiction or manifestly erroneous but does not as a rule substitute its own view for those of the inferior Tribunal. In other words the offending order or the impugned illegal proceeding is quashed and put out of the way on one which should not be used to the detriment of the writ petitioner. Thus in matters of employment while exercising its supervisory jurisdiction Art. 226 of the Constitution over the orders and quasi judicial proceeding of an administrative authority not being a proceeding under the industrial labour law before an Industrial Labour Tribunal culminating in dismissal of the employee the High Court should ordinarily in the event of the dismissal being found illegal simply quash the same and should not further give a positive direction for payment to the employee full back wages (although as a consequence of the annulment of the dismissal the petition as it obtained immediately before the dismissal it restored) such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by an Industrial Tribunal or Labour Court. The instant case is not one under Industrial/labour Law. The respondent employee never raised any industrial dispute nor invoked the jurisdiction of the Labour Court or the Industrial Tribunal. The instant case is not one under Industrial/labour Law. The respondent employee never raised any industrial dispute nor invoked the jurisdiction of the Labour Court or the Industrial Tribunal. He directly moved the High Court for the exercise of its special jurisdiction under Art. 226 of the Constitution for challenging the order of dismissal primarily on the ground that it was violative of the principles of natural justice which required that his public employment should not be reinstated without giving him a due opportunity to defend himself and to rebut the charges against him. Further more whether a workman or employee of a statutory majority should be reinstated in public employment with or without full back wages is a question of fact depending on evidence to be produced before the Tribunal. If after the termination of his employment the work. man/employee was gainfully employed elsewhere that is one of the important factors to be considered in determining whether or not the reinstatement should be with full back wages and with continuity of employment for those two fold reasons we are of the opinion that the High Court was in error in directing payment to the employee full back wages". ( 3 ) I am afraid that the learned Advocate for the respondent Panchayat reads more than what is warranted in this decision It cannot be urged that this decision is an authority for proposition that the High Court cannot in exercise of its jurisdiction under Article 226 issue appropriate directions for back wages once it is found that the order removing or dismissing a public servant is nonest on the ground of it being violative of principles of natural justice or against the statutory rules. Sarkaria J. in the said decision speaking in the context where the respondent who was an employee of the appellant Corporation challenged the order of his dismissal by moving Allahabad High Court for a writ of certiorari to quash the order of his dismissal on the ground that it was violative of principles of natural justice and praying for a declaration that the Corporation be restrained from recovering the sum of Rs. 549-61 Ps. from him. The respondent employee did not pray for any further writ of mandamus or a writ or direction in the nature of mandamus enjoining the Corporation to give him hack wages if the order was held to be a nullity. 549-61 Ps. from him. The respondent employee did not pray for any further writ of mandamus or a writ or direction in the nature of mandamus enjoining the Corporation to give him hack wages if the order was held to be a nullity. It was in that limited context that the Supreme Court held that the High Court acts only in a supervisory capacity and not as appellate Tribunal when it is called upon to exercise its certiorari jurisdiction under Article 226 of the Constitution. Even in context of certiorari jurisdiction the Supreme Court has not laid down as a blanket proposition that High Courts have no jurisdiction to issue necessary directions in the matter. Sarkaria J. has therefore emphasised that ordinarily High Court should not while quashing an illegal order of dismissal give a positive direction for payment of back wages since it involves consideration of fact also whether the aggrieved employee was wholly out of employment and without any income or was gainfully employed wholly or partly during this period. On matter of principle or authority it cannot be urged successfully that the High Court cannot issue a writ of mandamus or a writ order and/or direction in nature of mandamus once it is found that the order of dismissal or removal was non-est enjoining an employer who has clearly wronged and is liable to pay all the back wages. ( 4 ) IN Mazharul Islam Hashmi v. State of U. P. and Another AIR 1979 SC 1237 the were Bench consisting of Sarkaria and Reddy JJ. who delivered the judgment in Vijay Narayan Vajnayees case (supra) issued such a direction for payment of all the back wages. ( 4 ) IN Mazharul Islam Hashmi v. State of U. P. and Another AIR 1979 SC 1237 the were Bench consisting of Sarkaria and Reddy JJ. who delivered the judgment in Vijay Narayan Vajnayees case (supra) issued such a direction for payment of all the back wages. The facts in this case were that the appellant who was a confirmed Sanitary Inspector in the employment of the Municipal Board of Moradabad and other persons similarly situate like him moved the High Court of Allahabad to challenge the orders of their termination form the services passed as a result of reconstitution of services consequent to U. P. Nagar Mahapalika (Sanshodhan) Adhiniyam adding section 1124 to the V. P. Nagar Mahapalika Adhiniyam 1959 and also U. P. Municipalities (Amendment) Act 1964 adding section 69-B to the U. P. Municipalities Act 1916 The learned Single Judge of the Allahabad High Court dismissed the petitions by common judgment dated May 12 1969 The appellant and other persons went in appeal before the Division Bench which confirmed the order of the learned Single Judge In further appeal to the Supreme Court it was held following the decision in Mohd. Rashid Ahmed v. The State of U. P. and Another AIR 1979 SC 592 that the order of termination was void and ineffective since no opportunity was afforded to the appellant of being heard and therefore the said order suffered from a serious legal infirmity and must be quashed. Sarkaria J. speaking for the Court thereafter passed the operative order as under:-"he will therefore have to be treated as having continued in service till the age of superannuation and entitled to all the benefits incidental to such a declaration. " ( 5 ) IN Sukhdev Singh and Others v. Bhagatram AIR 1975 SC 1331 (Civil Appeal No. 2137 of 1972 which was an appeal from the decision of a Division Bench of this Court in Special Civil Application No. 1470 of 1968 decided on July 14 1972 The Supreme Court was concerned with the question whether Oil and Natural Gas Commission and such other statutory Corporations were authorities within the meaning of Article 12 of the Constitution. The Division Bench of this Court consisting of Diwan and M. U. Shah JJ in their decision of 15th July 1972 following the decision of the Full Bench of this Court declared a that the order of May 20 1967 passed by the Disciplinary Authority removing the petitioner who was respondent before the Supreme Court from service was in violation of the Regulations of the Commission and that a declaration be granted accordingly that it was null and void and the petitioner continued in service. The Division Bench thereafter issued directions in nature of mandamus in the following terms:-". . . We also issue a writ of mandamus directing the respondents to pay the petitioner on the footing that he continues in service his salary increments etc. and on the footing that the order of removal of the petitioner from service had not been passed against him at all. The respondents Will pay the costs of this petition to the petitioner. Rule made absolute accordingly" when this matter went in appeal before the Supreme Court the majority Court held that the Oil and Natural Gas Commission was an authority within the meaning of Article 12 of the Constitution and that its employees have a status of public employment and therefore the order of dismissal if made contrary to or in violation of the Regulations would be nonest. Ray C. J (as he then was) speaking for the majority Court passed the following operative order in para 68 of his judgment:- "in Civil Appeal No. 2137 of 1972 the declaration granted by the High Court that the order removing Bhagatram Sardarsingh Raghuvansi from service is null and void and that he continues in service is upheld". THE writ of mandamus issued by the High Court is also upheld. It should be noted that this is a seven Judges Bench decision with one learned Judge dissenting. ( 6 ) IN K. R. Deb v. Collector of Central Excise Shillguri AIR 1971 SC 1447 the order of dismissal of the appellant was challenged in the Court of Judicial Commissioner of Tripura and Agartala under Article 226 of the Constitution. The said petition was dismissed with the result that an appeal was taken to the Supreme Court by special leave. A five Judges bench speaking through Sikri CJ. The said petition was dismissed with the result that an appeal was taken to the Supreme Court by special leave. A five Judges bench speaking through Sikri CJ. (as he then was) confined itself out of a number of points urged before the Bench that the Collector had no authority to appoint one Shri K. P. Patnaik to inquire into the charge after the Inquiry Officer had already reported in favour of the appellant. Upholding that contention the Supreme Court held that such an action was not warranted under the Rules. Allowing the appeal the Court held as under:-"in the result we hold that no proper inquiry has been conducted in the case and therefore there has been a breach of Article 311 (2) of the Constitution. The appeal is accordingly allowed and the order dated June 4 1962 quashed and it is declared that the appellant should be treated as still continuing in service. He should be paid his pay and allowances for the period he has been out of office". ( 7 ) IN Sirsi Municipality v. Cacelia Kom Francis Tallis AIR 1973 SC 855 the Supreme Court was concerned with the validity of a dismissal order passed by the Sirsi Municipality of its employees without reasonable opportunity of being heard in his defence and that the said order of dismissal violated Rule 143 of the Sirsi Municipality Rules which inter alia provided that no officer or servant shall be dismissed without a reasonable opportunity being given to him of being heard in his defence. The respondent employee filed a suit for a declaration that the resolution was illegal and the status of the respondent as a midwife in the hospital remained unaffected and she continued as an employee of the Municipality as before. She claimed other reliefs also in the suit. The finding that the respondent was not given a reasonable opportunity of defending herself against the charge on which she was dismissed and the order of dismissal therefore violated Rule 143 was upheld by the first appellate Court as well as High Court. The High Court confirmed the declaration granted by the trial Court that the respondent was deemed to have continued in service from the date of dismissal to the date of the suit. The High Court confirmed the declaration granted by the trial Court that the respondent was deemed to have continued in service from the date of dismissal to the date of the suit. In appeal before the Supreme Court a contention was urged that if the dismissal was wrongful the only remedy could lay in damages. Negativing this contention Ray C. J. (as he then was) speaking for the majority court classified the cases of dismissal under three broad heads viz:- (1) pure relationship of master and servant; (2) relationship of master and servant arising under Industrial Law; and (3) relationship of master and servant arising in regard to the servant in the employment of the State or of other public or local authorities or bodies created under statute. What will be the remedy in respect of wrongful dismissal order in three classes of cases was set out in the following terms:-"termination or dismissal of what is described as a pure contract of master and servant is not declared to be a nullity however wrongful or illegal it may be. The reason is that dismissal in breach of contract is remedied by damages. In the case of servant of the State or of local authorities or statutory bodies courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation of the provisions of the statues. Apart from the intervention of statute there would not be a declaration of nullity in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies ( 8 ) THE courts keep the State and the public authorities within the limits of their statutory powers. Where a State or a public authority dismisses an employee in violation of the mandatory procedural requirements or on grounds which are not sanctioned or supported by statute the courts may exercise jurisdiction to declare the act of dismissal to be a nullity. Such implication of public employment is thus distinguished from private employment in pure cases of master and servant. . . (emphasis supplied by me) ( 9 ) HAVING regard to the settled legal position I do not think that Mr. Such implication of public employment is thus distinguished from private employment in pure cases of master and servant. . . (emphasis supplied by me) ( 9 ) HAVING regard to the settled legal position I do not think that Mr. Patel learned Advocate for the respondent Panchayat was justified in reading in the decision of the Supreme Court in Vijay Narayan Vajpayees case (supra) that the Supreme Court has laid down a blanket restriction on the powers of the High Court to issue a writ in the nature of mandamus or necessary directions the State or local authority or statutory body for paying the back wages. As stated above in Vijay Narayan Vajyayees case (supra) the Supreme Court was speaking in the limited context where the petitioner had prayed for a writ of certiorari and a writ of prohibition only. Mr. Patel however emphasised on the paragraphs which have been set out above where the Court has said that in matters of employment the High Court should not while exercising its supervisory jurisdiction under Article 226 of the Constitution over the orders of quasi judicial proceedings culminating in dismissal of an employee give positive direction for payment to employees full back wages. I am afraid that in emphasising these paragraphs Mr. Patel has lost sight of the fact that even saying so the Supreme Court has not laid down a blanket limitation but has said ordinarily High Court should be slow in granting positive direction. I do not think that the said passage prohibits High Courts in proper cases from issuing directions for back wages where such directions are so imperative. In the present case I am of the opinion that having regard to the eloquent circumstances this Court should not shirk its responsibility in issuing positive direction. I do not think that the said passage prohibits High Courts in proper cases from issuing directions for back wages where such directions are so imperative. In the present case I am of the opinion that having regard to the eloquent circumstances this Court should not shirk its responsibility in issuing positive direction. The eloquent circumstances are (1) that the Inquiry Officer inspite of the repeated demand by the petitioner could not give inspection of necessary documents as they were in possession of the police department; (2) that the Inquiry Officer did not think fit to examine any witnesses on behalf of the Department nor furnish any opportunity to the petitioner to cross examine the witnesses listed by him in his statement of defence; (3) the whole inquiry was in flagrant violation of Rule 7 of the Gujarat Panchayat Services (Discipline and Appeal) Rules 1964 (4) that the Disciplinary Authority did not issue any penalty notice for a period of more than three years after the submission of the inquiry report; (5) that the Disciplinary Authority did not finalise the matter for more than two years after the submission of the explanation of the petitioner to the penalty notice; and (6) that the whole inquiry took about as many as six years which conduct is in flagrant violation of the policy of the Government which has directed that the disciplinary inquiries should be completed in as short time as reasonably possible and so as not to exceed the maximum period of six months. ( 10 ) MR. Patel therefore urged that it is more a question of fact whether the petitioner is entitled to all the full back wages since it depends on the evidence to be produced before the Disciplinary Authority whether the petitioner remained out of employment for the whole period or was gainfully employed during the period of inquiry. Now it should be noted that the affidavit in reply filed on behalf of the respondent Panchayat is dated 21st March 1980. This indulgence was granted to the respondent Panchayat after the matter reached hearing and the arguments of one side were almost over. This indulgence was extended to the respondent Panchayat only in the interest of justice. Now it should be noted that the affidavit in reply filed on behalf of the respondent Panchayat is dated 21st March 1980. This indulgence was granted to the respondent Panchayat after the matter reached hearing and the arguments of one side were almost over. This indulgence was extended to the respondent Panchayat only in the interest of justice. In paragraph 13 of this petition where it has been averred that the whole inquiry was illegal and vitiated and the petitioner continued to be in service and was entitled to full salary and other emoluments the respondent Panchayat has not even in this affidavit which was permitted to be filed on 21st March 1980 joined issue as to show and satisfy the Court that the petitioner was not entitled to full back wages as he was gainfully employed during this period of inquiry or for any other reasons. It should be noted that the judgment in Vijay Narayan Vajpayees case (supra) was rendered on January 16 1980 and the affidavit in reply has been filed on 21st March 1980 and it therefore cannot be said that the respondentpanchayat could not have raised the plea as it was not aware of such a judgment of the Supreme Court. In that state of circumstances and the record I am of the opinion that this Court must issue a writ of mandamus or a writ in the nature of mandamus on the lines on which the Division Bench of this Court issued in Special Civil Application No. 1470 of 1968 in Sukhdev Singhs case (supra) and as confirmed by the Supreme Court. ( 11 ) THE result is that this petition is allowed and the impugned order of dismissal Annexure D dated 27-9-1976 is quashed and set aside as it is null and void. I therefore issue a writ of mandamus directing the respondent Panchayat to pay to the petitioner his salary and increments etc on the footing that he continues in service as if the order of dismissal of the petitioner from service had never been passed against him. Rule is made absolute accordingly with no order as to costs. Petition allowed. .