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2017 DIGILAW 1167 (ALL)

U. P. CO-OPERATIVE FEDERATION LTD. v. IRFAN AHMAD

2017-05-02

ARUN TANDON, REKHA DIKSHIT

body2017
JUDGMENT By the Court.—Heard Sri Ram Gopal Tripathi, learned counsel for the appellants and Sri Amit Saxena, learned counsel for respondent and also perused the record. 2. This is an intra Court appeal is directed against the order dated 13.5.2016 passed on the Review Application No. 80195 of 2016 in Writ Petition No. 12264 of 2015, Irfan Ahmad v. U.P. Co-Operative Federation Ltd. and 3 others. It is necessary to set out the fact leading to this appeal in short. 3. Irfan Ahmad, writ petitioner was appointed as Assistant in the office of Manager U.P. Co-operative Federation Ltd. on 30.3.1973. Departmental proceedings were initiated against Irfan Ahmad in the matter of loss of goods. He was placed under suspension vide order dated 23.12.2000.The disciplinary proceedings resulted in passing of order by the District Manager, directing recovery of loss of the goods to the extent of 50% from the petitioner i.e Rs. 3,11,333/-. Petitioner Irfan Ahmad filed Writ Petition No. 20540 of 2003, which was allowed on 5.2.2003. It is worthwhile to reproduce the following paragraph of the judgement dated 5.4.2012 which is is quoted as under : “The Supreme Court has held that in such a situation when principles of natural justice are violated, reinstatement should not be ordered and nor any direction for payment of arrears of salary should be given and the termination order will remain, but shall be subject to the fresh consideration after compliance of the principles of natural justice. Thus, when the principles of natural justice have been violated in the instant case, it will not be appropriate to issue direction for reinstatement of the petitioner. The respondents shall proceed with the enquiry from the stage the petitioner submitted a reply to the charge-sheet and conclude it expeditiously and the impugned order dated 6.2.2003 passed by the Managing Director of the UPCF shall be subject to the result of the fresh consideration. The writ petition is allowed to the extent indicated above.” 4. The order passed by the learned Single Judge had admittedly become final between the parties. The departmental proceedings in terms of the direction so issued by the writ Court were again initiated by the concerned authority, culminating in the order of the Managing Director dated 3.8.2013 by which the petitioner was dismissed from service. The order passed by the learned Single Judge had admittedly become final between the parties. The departmental proceedings in terms of the direction so issued by the writ Court were again initiated by the concerned authority, culminating in the order of the Managing Director dated 3.8.2013 by which the petitioner was dismissed from service. A finding was recorded that since the petitioner has already retired on 28.8.2011, the question of his dismissal from service does not arise any monetary loss of Rs. 1,91,129.80/- to be recovered from the retiral dues payable to the petitioner. 5. This order of the Managing Director was subjected to challenge by means of Writ Petition No. 12264 of 2015. In the writ petition three reliefs had been prayed for: (a) to quash the order of recovery dated 3.8.2013. (b) to make payment of entire arrears of salary from the date of suspension till the age of superannuation on 20.8.2011. (c) mandamus commanding the respondent to pay the entire retiral benefit. 6. The petition was allowed by the learned Single Judge vide order dated 26.2.2015. The order dated 3.8.2014 was set aside. A direction was issued to pay the retirial benefit to the petitioner within six weeks. There was no order in the matter of payment of arrears of salary from the date of suspension till the date of superannuation. 7. The employer, not being satisfied with the order of learned Single Judge, filed Special Appeal (Defective) No. 471 of 2015 (U.P. Cooperative Federation Ltd and 3 others v. Irfan Ahmad) which was dismissed vide order dated 21.7.2015. 8. Irfan Ahmad for non-payment of entire arrears of salary for the period indicated above, filed modification application before the learned Single Judge was dismissed vide order dated 20.11.2015 on the ground that since the order of learned Single Judge for which the modification was being prayed for stands affirmed with the dismissal of Special Appeal No. 471 of 2015. It would not be appropriate for the leaned Single Judge to modify such order. 9. Irfan Ahmad being not satisfied with order passed on his modification application dated 20.11.2015 filed Special Appeal No. 956 of 2015. This appeal was disposed of vide order dated 7.1.2016 with the observation that the leaned Single Judge was not correct in rejecting the application for modification on the ground that the appeal filed by the employer has been dismissed. Irfan Ahmad being not satisfied with order passed on his modification application dated 20.11.2015 filed Special Appeal No. 956 of 2015. This appeal was disposed of vide order dated 7.1.2016 with the observation that the leaned Single Judge was not correct in rejecting the application for modification on the ground that the appeal filed by the employer has been dismissed. Inasmuch as the grievance of the employee Irfan Ahmad could not have been the subject-matter of the consideration in the appeal filed by the employer. 10. The learned Division Bench further opined that proper remedy was to file review application and not modification application. The Court permitted Irfan Ahmad to do so with the observation that the dismissal of the modification application shall not come in the way of consideration of the review application. 11. The petitioner-Irfan Ahmad, accordingly, filed review application giving rise to the present special appeal. 12. On behalf of the appellant Sri Ram Gopal Tripathi, contended before us that on the date Writ Petition No. 20540 of 2003 filed by Irfan Ahmad was allowed i.e 5.4.2012. He has already attained the age of superannuation to be precise on 20.8.2011. Therefore, as per the judgement of the Apex Court which has been relied upon by the petitioner Irfan Ahmad in the case of Dev Prakash Tiwari v. U.P. Cooperative Institution Service Board, Lucknow and others, 2014(4) ESC 494 (SC), no direction should have been issued by the Writ Court for a fresh departmental enquiry. However, petitioner accepted the order and participated in the fresh proceedings, the same have been concluded in accordance with the principles of natural justice. It is further contended that the High Court had specifically directed in the order dated 5.4.2012 that the petitioner-Irfan Ahmad shall not be reinstated and that the dismissal order dated 6.2.2003 and recovery order would be subject to the result of the fresh enquiry. It is further contended that the High Court had specifically directed in the order dated 5.4.2012 that the petitioner-Irfan Ahmad shall not be reinstated and that the dismissal order dated 6.2.2003 and recovery order would be subject to the result of the fresh enquiry. It is contended that the Writ Court did not direct of reinstatement of the employee concerned even after setting aside the order of dismissal nor any direction was issued for payment of arrears of salary on the contrary from paragraph which has been quoted above, it is clear that the learned Single Judge was of the opinion that in view of the judgement of the Apex Court in the case of Hiran Mayee Mhattacharyya v. Secretary, S.M. School For Girls and others, (2002) 10 SCC 293 , if the order of dismissal has been set aside on technical ground, reinstatement was not to be directed till afresh completion of the inquiry in accordance with the principles of natural justice. 13. He, therefore, submits that the learned Single Judge while passing the order impugned has completely lost sight of the order which had become final between the parties. It is further contended that admittedly the employee was under suspension before passing of the order dated 6.2.2003. In writ petition filed by him against the said order being Writ Petition No. 20540 of 2003, no interim order was granted at any point of time. He attained the age of superannuation. He could be treated to be under suspension till the age of superannuation and the petitioner would be entitled only for subsistence allowance. 14. Sri Amit Saxena, learned counsel for the appellant however, contended that in view of the fact that no order of punishment can be made against an employee of the Cooperative Societies, once he attained the age of superannuation in view of the law laid down by the Apex Court in the case of Dev Prakash Tiwari (supra), the employee would be entitled to get entire arrears of salary with all allowances applicable during for the period of suspension and till the date of retirement. Therefore, it is contended that this Court may not interfere with the order of learned Single Judge passed on the review application. 15. We have heard the learned counsel for the parties and examined the records. 16. Therefore, it is contended that this Court may not interfere with the order of learned Single Judge passed on the review application. 15. We have heard the learned counsel for the parties and examined the records. 16. We may record that the Apex Court in series of the judgement has specifically laid down that the payment of arrears of salary for the period of dismissal/termination in case the termination/dismissal is set aside should be in the normal practice but it is always open for the employer to demonstrate that in the facts of the case such direction for payment of arrears of salary may not be made specifically in the case where the order of punishment is set aside because it had been made in violation of principles of natural justice. In that regard reference be made to the judgementin the case of Hiran Mayee Mhattacharyya (supra) andin the case of Managing Director, FCIL, Hyderabad and others v. B. Karunakar and others, (1993) 4 SCC 727 . 17. We find that the leaned Single judge while deciding the First Writ Petition filed by the petitioner Irfan Ahmad after setting aside the order of dismissal and recovery on the ground did not issue any direction for reinstatement of the petitioner Irfan Ahmad and required the inquiry be held afresh. The petitioner Irfan Ahmad has submitted his reply to the charge sheet and requested that the inquiry may be concluded expeditiously. This order had become final and, therefore, is binding upon them. It is admitted on record that on the date the writ petition was decided i.e 5.4.2012, Irfan Ahmad had already attained the age of superannuation i.e. on 20.8.2011. For the reasons best known to the writ petitioner as well as to the employer-appellant before us they have neither chosen to inform the Court of the aforesaid fact nor it was pleaded by any of the parties that in the event of retirement of the petitioner-Iran Ahmad as on the date of the judgement, no further direction for fresh departmental inquiry could be issued. 18. 18. Be that it may, the direction issued by the Writ Court for reinstatement being not affected even after the order of dismissal/termination of the employer and further that order dated 6.2.2003 being subject to the result of the fresh consideration did need consideration by the learned Single Judge, in the fact of the case, before directing full payment of salary for the period of suspension till the date of retirement. The order is binding between the parties and the direction issued thereon could not have been ignored by the learned Single Judge. 19. We are of the opinion that the said judgement and order has material bearing on the consideration of the claim of the petitioner Irfan Ahmad for payment of full salary for the period as aforesaid. 20. The other aspect which needs consideration by the learned Single Judge was that the petitioner was under suspension till the order of dismissal was made and that if the Court had not directed for reinstatement even after setting aside the order of termination in the year 2012, the issue as to whether the employee should be treated to be under suspension till retirement in view of the order dated 3.8.2011 what would be the status of such an employee has to be considered in accordance with law keeping in mind the judgement of the Writ Court dated 5.4.2012. 21. So far as the judgement relied upon by Sri Amit Saxena, Advocate, in respect of his being entitled to the entire salary as has been laid down in the case of Dev Prakash Tiwari (supra) is concerned, suffice is to say that in paragraph 6 of the said judgement, it has been noticed that after the High Court has set aside the order of Disciplinary Authority for violation of principles of natural justice vide order dated 10.1.2006, the employee was in fact reinstated in service on 26.4.2006 and fresh departmental proceedings were initiated on 7.7.2006 meaning thereby that in the case of Dev Prakash Tiwari (supra) subsequent proceedings had taken place after he had already restored back in service under the order of writ Court, and the order of punishment was made in the case of Dev Prakash Tiwari (supra) on a date subsequent to his having superannuated. The fact in hands are distinguishable. The fact in hands are distinguishable. In asmuch we have already noticed above as Irfan Ahmad was never reinstated on the contrary the writ Court directed that he was not to be reinstated till fresh enquiry. The Apex Court has held that a little difference in fact would result in lot of difference is the precedential value of the judgement Ref: Bhavnagar University v. Palitana Sugar Mills (Pvt) and others, 2003 (2) SCC 111 , wherein it has been held as follows. “It is well-settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.” 22. In the totality of the circumstances, since the learned Single judge has failed to examine the aforesaid aspect of the matter and has directed for payment of salary for the period of suspension till the date of retirement, the order cannot be legally sustained and is hereby set aside. 23. The special appeal is allowed. The review application is restored to its original number for being heard and decided by the learned Single Judge afresh in the light of the observations made herein above. 24. We, however, clarify that the order passed by us will not affect the payment of other retiral dues which may have been granted to the writ petitioner subsequent to the judgement dated 26.2.2015. The payment shall be subject to the orders to be passed afresh by the Writ Court. Appeal is allowed.