M. F. SALDANHA, J. ( 1 ) A very unusual situation, though not unfamiliar where public authorities are concerned has arisen in this case which throws up for consideration an issue of far-reaching consequence which may be summarised as follows. ( 2 ) IF in a disciplinary proceeding where gross misconduct has been proved against a public servant and an order of dismissal is passed against him, and where the matter goes wholly and completely by default before a Labour Court principally because of the abnormally long efflux of time during which the material witness has retired and is not available, whether the benefit of such default should accrue to the errant employee? In other words, should a public authority be made to pay backwages for 191/2 years in the face of a record that would normally justify the disciplinary order, merely because the order was not substantiated before the lower Court or whether, it is essential, in the public interest and for purposes of doing real Justice to mould the relief in such a way as to ensure that an errant employee does not get undue benefits of a situation when he does not deserve the same. ( 3 ) HITHERTO, on numerous instances, thanks mainly to the levels of inefficiency and irresponsibility that accompanies the manner in which many public authorities conduct their cases before the Law Courts, not to mention specific examples of corrupt practices, in normal situations where the proceeding has gone by default, an employee against whom disciplinary action was rightly instituted and one who had been correctly punished, has not only succeeded in getting reinstated but reaping windfall gains through an order for backwages for the entire period. It is hardly ever possible for the employer to be able to refute a statement made that the employee was unemployed or underemployed during the period and the Courts have been therefore, as a matter of course been issuing rule and awarding the backwages for the period in question. The question arises as to whether such an order should be mechanically passed merely because the disciplinary order is set aside or whether a deeper consideration of the record is essential for purposes of doing real justice in which case, partial or no backwages may be awarded. ( 4 ) IT is only the salient facts of this case that need to be mentioned here. ( 4 ) IT is only the salient facts of this case that need to be mentioned here. The petitioner before me was employed as a clerk by the Bangalore Water Supply and Sewerage Board. He contends that because he was an active unionist that the officials of the Board were determined to frame him. The petitioner came to be charge-sheeted on serious charges which basically related to collection of money on behalf of the Board and not accounting for it among others, and in the subsequent enquiry, where the board examined the relevant witnesses and produced supportive documentary evidence, the charges were held to be established. After following the requisite procedure and considering all that the petitioner had to say in his defence, an order of dismissal from service was passed principally because a view was taken that such misconduct, particularly in relation to financial matters is extremely serious and that therefore, it was essential to dismiss him from service. ( 5 ) THE matter was thereafter taken up by the petitioner before the Labour Court and the proceedings dragged on from the year 1979 until 30-12-1993. A perusal of the roznama makes distressing reading. Each party before the Court has sought to blame the other and I do find that the inability of the Court to dispose of the case over this long period of time can hardly be excused even given all the inhibiting factors that were prevalent. The petitioner had made an application for interim relief which was granted to him and he continued to receive certain payments. The Labour Court had also recorded a preliminary finding that the enquiry was not proper. This order is wholly and completely unsustainable even to the point of being perverse. It is unfortunate that the order was not challenged and this situation is an eloquent reflection on the manner in which many public authorities conduct their litigation. The case plodded on and the Board examined H. K. Sathya Narayan, Assistant secretary to prove the charges. The roznama shows that there were abnormally long breaks in the hearing and that subsequently since this officer had retired, the Board could not make him available for cross-examination. The case plodded on and the Board examined H. K. Sathya Narayan, Assistant secretary to prove the charges. The roznama shows that there were abnormally long breaks in the hearing and that subsequently since this officer had retired, the Board could not make him available for cross-examination. The petitioner examined himself and naturally denied the charges in question, his evidence is of no consequence because the Labour Court was only concerned with the Board's evidence as far as sustaining the charges was concerned. Since Sathya Narayan was not available, as he could not be presented for cross-examination, this factor proved fatal to the Board. The Court held that the board has been unable to sustain the charges and that as a necessary consequence, the order of dismissal must be set aside and ipso facto, full backwages must be paid to the respondent. It is this order that has been challenged before me. ( 6 ) MR. Appaiah, learned Advocate appearing on behalf of the Board advances the submission before me that the record of this case fully justifies the order of dismissal, that there is no doubt about the fact that the case has gone by default before the lower court and that in order to avoid a miscarriage of Justice, that the matter should be remanded. He stated that the Board will trace out Sathya Narayan who has since retired and produce him for cross-examination and will also trace the other witnesses such as the customers of the Board so that the matter can be decided on merits. He emphasizes the fact that the Board is a public authority and that it will be saddled with having to pay backwages for almost 20 years which is unjust in the face of the record of the present case wherein the disciplinary action was perfectly sustainable and consequently, that the Board must be given a fresh opportunity even if costs are to be awarded. Mr. Appaiah advanced a subsidiary submission namely that if this court is not prepared to remand the matter, that on a total view of the record, which includes the record of the entire proceedings, that he must be permitted to go behind the order of the Labour Court and point out that the original disciplinary order is liable to be upheld. Appaiah advanced a subsidiary submission namely that if this court is not prepared to remand the matter, that on a total view of the record, which includes the record of the entire proceedings, that he must be permitted to go behind the order of the Labour Court and point out that the original disciplinary order is liable to be upheld. In support of this latter contention, he submitted that unlike in many other proceedings, the record of the disciplinary proceedings is virtually a part of the Labour court record and it is only additional and further evidence that is required to be led. The initial finding of the Labour Court that the enquiry was not proper is only the justification for permitting additional evidence to be led before the Labour Court as the employer is given a fresh opportunity of sustaining the charges whereas the employee has an equal opportunity of refuting them. ( 7 ) AS far as the first submission is concerned, I need to record that Mr. Narasimhan on behalf of the employee-respondent has vehemently opposed any remand. He submits that this matter has been dragging on for 20 years, that the respondent has been out of employment during this period for no fault of his and that it is entirely because of the default on the part of the Board that they did not establish their case on the last occasion. It is his contention that no second opportunity should be afforded in such a situation as a remand would involve considerable time for a de novo hearing. Learned counsel also pointed out to me that the witness who was not available for a long period of time will never appear even if the case is remanded, that the remaining witnesses who are customers may not even be traceable and that the whole exercise would be futile. On the other hand, he submitted that even if such a chance is to be given, that the petitioner-Board must be first directed to pay the respondent the backwages for the entire period and to then agitate the case if they so desired. On the other hand, he submitted that even if such a chance is to be given, that the petitioner-Board must be first directed to pay the respondent the backwages for the entire period and to then agitate the case if they so desired. He relied heavily on the decision of the Supreme court in Desh Raj Gupta v Industrial Tribunal-IV, U. P. , lucknow and Another, wherein, the Supreme Court held that once an order of dismissal is set aside, that normally the status quo ante is restored, the removal being unjustified, backwages must necessarily be awarded particularly if there is no evidence that the employee was employed during that period. ( 8 ) IT is rather unfortunate that whenever a contention is raised before an Appeal Court that a matter has gone by default, even if costs are imposed, a remand almost mechanically follows. The Subordinate Courts which are already overburdened have something like 17 to 20% of cases which have been so remanded. An analysis of what happens after such remand indicates that in as many as 92% of the cases principally because of the long time lag, the witnesses are either not available or if they are produced, that their evidence is completely unsatisfactory principally because they have forgotten what happened 10 or 20 years earlier. While dealing with a case of remand, a subordinate Court has a doubly heavy duty of first going through the entire earlier record and then proceeding and as indicated, in as many as 92% of the cases the end result is zero. Apart from this, the basic question arises as to whether in the present context where judicial time is precious, a remand is at all justified. It is necessary therefore to examine as to whether any useful and definite purposes will be served through a remand and, as in most cases if the answer is no, the Superior court must refuse a remand. In the present case, despite Mr. Appaiah's assurance that Sathya Narayan will be produced, since he has retired several years back, one can only evaluate the calibre of the evidence that he will give even if available. As far as the customers are concerned, they will either not be traceable or if traceable, are unlikely to give any worthwhile evidence. I do not visualise any useful purpose being served by remanding the case more so because Mr. As far as the customers are concerned, they will either not be traceable or if traceable, are unlikely to give any worthwhile evidence. I do not visualise any useful purpose being served by remanding the case more so because Mr. Narasimhan is right when he points out that no Court is obliged to give a litigant more than one opportunity. The application for remanding the matter is therefore refused. ( 9 ) THAT leaves us with the record of the case as it exists. The petitioner's counsel has submitted that the record would justify the punishment that was imposed whereas Mr. Narasimhan has vehemently contended that the record of the disciplinary proceedings cannot form the subject-matter of a decision by this court as it was incumbent upon the Board to independently establish the charges before the Labour Court. ( 10 ) AS far as this last submission is concerned, the argument proceeds on the footing that the preliminary finding of the labour Court that the enquiry was not proper is valid and binding. A perusal of that order indicates that it is an unsound, frivolous and worthless order and that none of the technical grounds on which the finding is recorded are sustainable. I do not need to labour on this point because there is virtually nothing in that order and I have no hesitation in categorising it as perverse. Once that finding is ignored, one is relegated to the position that the Board really did not require to establish the charges before the Labour Court. The enquiry proceedings from part of the record of the lower Court and therefore can and must be looked into. I have heard the respondents learned counsel who has sought to assail the procedure as also the conclusions arrived at but there is no valid ground on which either of these contentions can be upheld. ( 11 ) ON the record of the enquiry proceedings to my mind the disciplinary authority was justified in taking action against the petitioner. We are however faced with a very curious position whereby the initial order holding that the enquiry was not proper which was passed by the Labour Court and about which order I have had occasion to comment, was not challenged which was why the case proceeded before the Labour Court. We are however faced with a very curious position whereby the initial order holding that the enquiry was not proper which was passed by the Labour Court and about which order I have had occasion to comment, was not challenged which was why the case proceeded before the Labour Court. It is true that subsequently, the matter went by default and it is because of the failure on the part of the Board not on merits but for the reasons set out by me above that an order for reinstatement has been passed. Having regard to the fact that the petitioner has been out of employment for a long period of time, it would not be fair to interfere with that order as far as reinstatement is concerned because the Board deserves to be penalised for allowing the case to go by default. However as indicated by me earlier, the benefit of this default, on the record of this case cannot be claimed by the respondent-employee beyond getting the benefit of reinstatement in service. Normally, but for the peculiar record of this case, I would have had no hesitation in upholding the order of dismissal but the time factor, status of the employee and the contributory negligence on the part of the board are sufficient grounds for this Court not to do so. ( 12 ) AS indicated earlier, the basic question arises as to whet her, even if a public authority commits default, an undeserving respondent can be a beneficiary thereof. Propriety, public interest and the Rule of Fairness demand that the answer must be an emphatic no. The respondent would therefore, not be entitled to his backwages. ( 13 ) IF the petitioner has not been so far reinstated, the Board shall reinstate him in the position that he last held within a period of one month from today. By virtue of this order, though the petitioner would not be entitled to his backwages for the entire period of his absence from service, he shall still be entitled to claim the benefits of any increments of salary that must have taken place over the years in relation to the post to which he is, reinstated, for purposes of his service record and terminal benefits only, the period of absence shall not be deducted while considering his continuity of service and similarly, for purposes of future promotions etc. , the respondent's overall length of service including his period of absence shall be relevant. ( 14 ) THE petition partially succeeds. In the unusual circumstances of this case, the petitioner-Board shall pay to the respondent costs of the petitioner quantified at Rs. 2,000/ -. ( 15 ) BEFORE parting with this case, it is necessary for me to direct, that the Registrar shall forward a copy of this Judgment to the Chairman of the petitioner-Board who shall take note of the observations of this Court particularly with regard to the manner in which the Board's litigation is conducted in the Lower courts. --- *** --- .