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Uttarakhand High Court · body

2012 DIGILAW 354 (UTT)

Krishna Kumar Pandey v. State of U. P.

2012-07-05

TARUN AGARWALA

body2012
JUDGMENT : Sri Manav Sharma, the learned counsel for the petitioner. List has been revised. Mrs. Beena Pandey, Standing Counsel appears for the State of U.P. No one appears for the U.P. State Textile Corporation Limited. The present petition has a chequered history and it would be appropriate if the facts are narrated in a nutshell. In the year 1990, the petitioner was working as a Reeling-Winding-Incharge in the Kashipur Unit of the U.P. State Textile Corporation Limited. The Chief Executive of the Kashipur Unit for reasons best known to him bore a grudge against the petitioner and issued an order of dismissal dated 15/12/1990 without issuing a show cause notice or a chargesheet. No opportunity was provided to the petitioner. The petitioner, being aggrieved by the order of dismissal dated 15/12/1990, filed writ petition No. 33193 of 1990 before the Allahabad High Court in which an interim order dated 26th July, 1991 was passed staying the effect and operation of the order of dismissal. The Court further directed the respondents that he would be entitled for his salary during the pendency of the writ petition. Subsequently, the respondents presumably realizing the mistake issued a chargesheet to the petitioner on 3rd October, 1991 on which basis a domestic inquiry was initiated. The Inquiry Officer, after giving an opportunity to the petitioner to defend himself, submitted his inquiry report. Based on this inquiry report, the disciplinary authority passed a fresh order of dismissal dated 6th April, 1992. The petitioner, being aggrieved by the fresh order of dismissal, filed writ petition No. 12663 of 1992 which was allowed by a judgment of the Allahabad High Court dated 3rd August, 1999. The writ court held that the order of dismissal was passed in violation of the principle of natural justice since a copy of the inquiry report was not supplied and, accordingly, allowed the writ petition and quashed the order of dismissal directing the respondents to reinstate the petitioner in service and further decide the question of arrears of salary. For facility, the operative portion of the judgment dated 3rd August, 1999 passed by the Allahabad High Court is extracted herein : “The writ petition succeeds and is allowed. The order of dismissal dated 06.04.1992 Annexure-21 to the writ petition passed by respondent no. 3 is quashed. For facility, the operative portion of the judgment dated 3rd August, 1999 passed by the Allahabad High Court is extracted herein : “The writ petition succeeds and is allowed. The order of dismissal dated 06.04.1992 Annexure-21 to the writ petition passed by respondent no. 3 is quashed. The respondents are directed to reinstate the petitioner in service within a period of 15 days from the date a certified copy of this order is served upon to the respondents. The respondents are further directed to decide the question of arrears of salary, which is to be paid to the petitioner within a period of one month thereafter.” Pursuant to the order of Allahabad High Court, the respondents reinstated the petitioner by an order dated 29th September, 1999. However, no decision was taken with regard to his arrears of salary. The petitioner was forced to file a Contempt Application No. 1343 of 2000 and, during its pendency, the respondents passed the impugned order dated 15th August, 2000 rejecting the claim of the petitioner for arrears of salary for the period 06.04.1992 to 29th September, 1999, i.e, the period when the petitioner was out of service. The petitioner, being aggrieved, has filed the present writ petition again before the Allahabad High Court which, upon the creation of the State of Uttarakhand, was transferred to this Court. The law with regard to the issuance of an inquiry report has already been settled by the Supreme Court in the case of Ramzan Khan Vs. Union of India, 1991 (1) UPLBEC 456, wherein the Supreme Court held that supply of the inquiry report before passing the order of termination was an essential requisite of the principle of natural justice. Subsequently, a Constitution Bench of the Supreme Court in Managing Director, ECIL, Hyderabad Vs. B. Karunakar, AIR 1994 SC 1074 has clarified the judgment of Ramzan Khan (Supra). Subsequently, a Constitution Bench of the Supreme Court in Managing Director, ECIL, Hyderabad Vs. B. Karunakar, AIR 1994 SC 1074 has clarified the judgment of Ramzan Khan (Supra). The Supreme Court held that where the inquiry report has not been furnished to the aggrieved employee in which case an opportunity should be given by the Court or the Tribunal concerned to show cause as to how his case was prejudiced because of the non supply of the report and, only thereafter, if the Court comes to the conclusion that the non supply of the report would make no difference to the ultimate findings and the punishment given, the Court or the Tribunal in that case would not interfere with the order of punishment. The Supreme Court held that the Court should not mechanically set aside the order of dismissal merely on the ground that the inquiry report was not furnished. The Supreme Court further went on to hold that where the Court or the Tribunal set aside the order of punishment on the ground of non furnishing of the report, the proper relief to be granted in such a case would be to direct reinstatement of the employee concerned with liberty to the authority or the management to proceed with the inquiry and continuing with the inquiry from the stage of furnishing of the report. The Supreme Court further went on to hold that 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 would 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. That is to say, if the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority would be at liberty to decide according to law as to how it would treat the period from the date of dismissal till the date of reinstatement and to what benefits, if any, and the extent of the benefits, the employee would be entitled. The reinstatement made as a result of setting aside of the inquiry for failure to furnish the report would be treated as reinstatement for the purpose of holding a fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. The reinstatement made as a result of setting aside of the inquiry for failure to furnish the report would be treated as reinstatement for the purpose of holding a fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. In the light of the aforesaid decision of the Supreme Court in B. Karunakar (Supra), the writ court of the Allahabad High Court after noticing the judgment of the Supreme Court in Ramzan Khan and B. Karunakar’s case (Supra) passed an order of reinstatement leaving it open to the authority to decide the arrears of salary which was required to be paid. The operative operation of the order of the writ court is required to be read in the light of the decision given by the Constitution Bench of the Supreme Court in B. Karunakar’s case (Supra). As a result of the directions of the Court for reinstatement, the respondents reinstated the petitioner but did not choose to hold a fresh inquiry after furnishing the inquiry report and starting from that stage onwards. As a consequence thereof, the charges levelled against the petitioner was deemed to have been dropped by the respondents. When there are no charges against the petitioner, the question of denial of his salary for the intervening period does not arise. The impugned order takes into consideration the gravity of the charges which in the opinion of the Court cannot be taken into consideration since further disciplinary proceedings have not been initiated. No action pursuant to the inquiry report has been taken afresh. Further, the mere fact that the petitioner has not rendered his service is on account of no fault of the petitioner but on account of the dismissal order for which the petitioner cannot be blamed. In the light of the aforesaid, the principle of no work no pay does not arise in the given facts and circumstances of the case coupled with the fact that the respondents is not present to assist the court. In the light of the aforesaid, the claim of the petitioner for payment of salary for the period 6th April, 1992 to 29th September, 1999, i.e., the period from the date when he was dismissed till the date when he was reinstated is justified and is liable to be allowed. In the light of the aforesaid, the claim of the petitioner for payment of salary for the period 6th April, 1992 to 29th September, 1999, i.e., the period from the date when he was dismissed till the date when he was reinstated is justified and is liable to be allowed. The petitioner has also claimed relief for payment of salary from 1st December, 1999 to 2nd August, 1999. No pleadings in this regard has been made in the writ petition and, consequently, no relief can be granted for this period. The learned counsel for the petitioner has also submitted that from the date of his joining pursuant to the order of the writ court dated 3rd August, 1999, the petitioner has not been paid his salary and, therefore, a direction should be issued to the authority to pay the salary. Having heard the learned counsel for the petitioner on this aspect, the Court finds that the pleadings made in the writ petition are very sketchy and does not indicate as to whether the petitioner is working on the post pursuant to the order of reinstatement. Consequently, no relief can be given to the petitioner coupled with the fact that no specific relief has been prayed in the writ petition. In the light of the aforesaid, the writ petition is partly allowed. A writ of mandamus is issued commanding the respondent No. 2 to pay full salary to the petitioner for the period 06.04.1992 to 29th September, 1999 within six weeks from the date of the production of a certified copy of the order. In the event, the amount is not paid within the aforesaid period, the respondent will pay interest @ 6% p.a. from the date of denial of his salary. In so far as the current salary for the period post reinstatement of the petitioner is concerned, it would be open to the petitioner to make an appropriate representation before the authority concerned. If such a representation is made, the authority concerned will decide the matter expeditiously in accordance with law.