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1997 DIGILAW 7 (GAU)

Th. Surchandra Singh v. State of Manipur

1997-01-21

A.K.PATNAIK, D.N.BARUAH, V.K.KHANNA

body1997
V.K. Khanna, C.J.— The present Civil Rule has come up before the Full Bench as the learned Single Judge while hearing the case has taken the view that the view taken by the Division Bench on 14.8.95 and the view of the learned Single Judge in Civil Rule No. 1290 of 1994 require reconsideration in view of the law as laid down by the Apex Court in the case of Managing Director, ECIL vs. B. Karunakar, AIR 1994 SC 1074 . As the entire case has been referred to the Full Bench, the Bench has heard the entire matter. 2. We have heard the learned counsel appearing for the petitioner and the learned Advocate General appearing for the State of Manipur 3. Admittedly, the petitioner, a member of the Manipur Rifles, was serving in the 7th Battalion. His services were terminated by an order dated 23.3.93, preceded by a report submitted by the enquiring authority. His appeal against the impugned order of termination was dismissed. He challenged the aforesaid termination order on the ground that a copy of the enquiry report was not furnished to the petitioner before the impugned order of termination terminating the services of the petitioner was passed. 4. The learned counsel of both the parties have not contested that the law in this connection has been laid down in the case of Managing Director, ECIL (supra). The Apex Court in the aforesaid case has held: "Hence, in all cases where the Inquiry 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 Courts/Tribunals find that the furnishing of the report would have a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Courts/Tribunals set 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 backwages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should in variably 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 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." 5. In this case, it has not been disputed that the Enquiry Report has not been supplied to the petitioner. We have examined the charges levelled against the petitioner and in our opinion it was necessary that the petitioner should have been supplied with the Enquiry Report as the explanation submitted by him may have made a difference in respect of the punishment which has been imposed on him. 6. We have examined the charges levelled against the petitioner and in our opinion it was necessary that the petitioner should have been supplied with the Enquiry Report as the explanation submitted by him may have made a difference in respect of the punishment which has been imposed on him. 6. We are thus of the opinion that in view of the law as laid down in the case of Md. Ramzan Khan (supra), the petitioner will be reinstated in service with liberty to the disciplinary authority to proceed with the enquiry by placing the petitioner under suspension and continue the enquiry from the stage of furnishing him with the report. The question as to whether the petitioner would be entitled to backwages and other benefits from the date of dismissal to the date of his reinstatement if ultimately ordered will be decided by the disciplinary authority according to the law after termination of the proceeding and depending on the final outcome. If the petitioner succeeds in the fresh enquiry and is directed to be reinstated, the disciplinary authority will be at liberty to decide according to law as to how it will treat the period from the date of dismissal till the date of reinstatement and to what benefit, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the enquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh enquiry from the stage of furnishing the report and no more. 7. Subject to the aforesaid observations, the present petition is allowed to the extent indicated above. However, looking to the entire facts and circumstances of the case, the parties shall bear their own costs.