UNION OF INDIAversusY.S. SADHU, EX-INSPECTOR

                          [2008] 13 S.C.R. 784


A                          UNION OF INDIA
                                    v.
                    Y.S. SADHU, EX-INSPECTOR
                    (Civil Appeal No.5771 of 2008)
                        SEPTEMBER 22, 2008
B
        [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
                       SHARMA, JJ.]

        Labour law: Disciplinary proceedings - Non-furnishing
c of enquiry report to delinquent employee - Order of dismissal
  - Duty of courts/tribunal to interfere - Held: When Court finds
  that there was violation of rules of natural justice, it should set
  aside order of dismissal - However there would not be rein-
  statement - Proceedings would continue and left to be de-
D cided by authority concerned, based on fresh enquiry.
        The writ petitioner-respondent was dismissed from
  service, on the basis of report submitted by enquiry of-
  ficer, recording establishment of charges. The High Court
  directed reinstatement without payment of back wages.
E Hence the present appeal.
         Respondent contended that as the requisite prin-
    ciples of natural justice were not followed, High Court had
    passed the orders in his favour.
F        Partly allowing the appeal, the Court
       HELD: 1. In all cases where the enquiry officer's re-
  port 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
G 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 preju-
  diced because of non-supply of the report. If the non-sup-
  ply of the report would have made no difference to the
H                                 784
              UNION OF INDIA v. Y.S. SADHU,              785
                    EX-INSPECTOR

ultimate findings and the punishment given, the Court/          A
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    B
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 inter-
nal appellate or revisional authority), there would be nei-
ther a breach of the principles of natural justice nor a de-    c
nial of the reasonable opportunity. If the Court/Tribunal
finds that the furnishing of the report would have made a
difference to the result, it should set aside the order of
punishment. Where after following the above procedure,
the Court/Tribunal sets aside the order of punishment, the
                                                                0
proper relief that should be granted is to direct re-instate-
ment of the employee with liberty to the authority/man-
agement to proceed with the inquiry, by placing the em-
ployee under suspension and continuing the inquiry from
the stage of furnishing him with the report. The question
whether the employee would be entitled to the back wages        E
and other benefits from the date of his dismissal to the
date of his re-instatement 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 sue-        F
ceeds in the fresh inquiry and is directed to be re-instated,
the authority should be at liberty to decide according to
 law how it will treat the period from the date of dismissal
till the re-instatement and to what benefits, if any and the
extent of the benefits, he will be entitled. The re-instate-    G
 ment made as a result of the setting aside the inquiry for
failure to furnish the report, should be treated as a re-in-
statement for the purpose of holding the fresh inquiry from
the stage of furnishing the report and no more, where such
fresh inquiry is held. [Para 7] [P 788 C-H] [785-A-D]           H
    786       SUPREME COURT REPORTS                 [2008] 13 S.C.R.


A        Hiran Mayee Bhattacharyya v. Secretary, S. M. School
    for Girls aand Ors. (2002) 10 SCC 293; UP State Spinning
    Co. Ltd. v. R.S. Pandey and Anr. (2005) 8 SCC 264 - relied
    on.
         2. There shall not be any reinstatement but the pro-
B   ceedings shall continue from the stage where it stood
    before the alleged vulnerability surfaced. [Para 8] [789-H]
         3. If any representation is made by respondent for
    varying the order of termination to one of compulsory re-
c   tirement to the concerned authorities, the same to be con-
    sidered in its proper perspective. [Para 9] [790-B]
                           Case Law Reference
          (2002) 10 sec 293      relied on             Para 6

D         (2005) 8 sec 264       relied on             Para 7
         CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5771
    of 2008
         From the final Judgment and Order dated 8.12.2006 of
E   the Gauhati High Court in Writ Appeal No. 45 of 2004
          Binu Tamta and Sushma Suri for the Appellant.
          Khwairakpam Nabin Singh for the Respondent.
          The Judgment of the Court was delivered by
F
          Dr. ARIJIT PASAYAT, J. 1. Heard learned counsel for the
    parties.
          2. Leave granted.
        3. Challenge in this appeal is to the judgment of a Division
G Bench of the Gauhati High Court dismissing the writ appeal filed
  by the appellants.
        4. Challenge in the writ appeal was to the judgment and
  order dated 04.12.2003 passed by learned Single Judge di-
H recting re-instatement of the writ petitioner (respondent herein)
              UNION OF INDIA v. Y.S. SADHU,                 787
          EX-INSPECTOR [DR. ARIJIT PASAYAT, J.]

in service without payment of back wages. The reasons for which    A
learned single Judge interfered with the order of dismissal from
service was that the witnesses examined earlier were not pro-
duced for cross examination. Punishment was awarded by the
Disciplinary Authority by taking into account the report submit-
ted by the enquiry officer recording establishment of charges.     8
The Division Bench concurred with the findings of the learned
Single Judge.

      5. In support of the appeal learned counsel for the appel-
lant submitted that the view taken by learned Single Judge and
the Division Bench is contrary to w)lat has been stated by this    c
Court in several cases. Learned counsel for the respondent, on
the other hand, submitted that because the requisite principles
of natural justice were not followed, learned single Judge and
the Division Bench had passed the orders in favour of the re-
spondent-writ petitioner.
                                                                   D
    6. In Hiran Mayee Bhattacharyya Vs. Secretary, S.M.
School for Girls and Ors. (2002 (10) SCC 293) this Court has
observed as follows :

     "We, therefore, direct the disciplinary authority to furnish a
     copy of the enquiry report to the appellant and then permit E
     her to submit her representation/explanation to the same
     and pass final orders thereafter. However, this will not lead
     to reinstatement or to back wages inasmuch as this Court
     had decided in the case of Managing Director, ECIL,,
     Hyderabad Vs. B. Karunakar (1993 (4) SCC 737) that F
     there need be no reinstatement nor back wages need be
     paid when the Court directs that the principles of natural
     justice should be followed. We, therefore, remit the matter
     to the disciplinary authority, being Secretary, Shibarampur
     Madhyamik High School for Girls, Shibarampur, Calcutta G
     700061 for the aforesaid purposes. The termination order
     already passed will remain, but subject to the result of the
     fresh consideration as directed above".
      7. Similarly, in UP State Spinning Co. Ltd. Vs. R.S.
Pant!"Jy and Anr (2005 (8) sec 264), it was noted as follows:      H
    788        SUPREME COURT REPORTS                   [2008] 13 S.C.R.


A         "The residual question is what would the appropriate
          direction in such a case. Stand of the employer is that it
          could have justified the order of termination by adducing
          any evidence even if it was held that there was some
          defect in the departmental proceedings. The solution is
B         found in what was stated by this Court in Managing
          Director, ECIL v. B. Karunakar, [1993] 4 SCC 737. In
          paragraph 31, it was observed as follows:
          "In all cases where the enquiry officer's report is not
          furnished to the delinquent employee in the disciplinary
c         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
D         non-supply of the report. If 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
E         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
F         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 Court!Tribunal finds
          that the furnishing of the report would have made a
          difference to the result in the case that it should set aside
G
          the order of punishment. Where after following the above
          procedure, the Court/Tribunal sets aside the order of
          punishment, the proper relief that should be granted is to
          direct re-instatement of the employee with liberty to the
          authority/management to proceed with the inquiry, by
H
                   UNION OF INDIA v. Y.S. SADHU,                    789
               EX-INSPECTOR [DR. ARIJIT PASAYAT, J.]

          placing the employee under suspension and continuing A
          the inquiry from the stage of furnishing him with the report.
          The question whether the employee would be entitled to
          the back wages and other·benefits from the date of his
          dismissal to the date of his re-instatement if ultimately
)·
          ordered, should invariably be left to be decided by the B
        . authority concerned according to law, after the culmination
          of the proceedings and depending on the final outcome.
          If the employee succeeds in the tres~ inquiry and is
          directed to be re-instated, the authority should be at liberty
          to decide according to law how it will treat the period from     c
          the date of dismissal till the re-instatement and to what
          benefits, if any and the extent of the benefits, he will be
          entitled. The re-instatement made as a result of the setting
          aside the inquiry for failure to furnish the report, should be
          treated as a re-instatement for the purpose of holding the
                                                                         0
          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."
          In view of above, we set aside the order of learned Single
          Judge as affirmed by the Division Bench by the impugned E
          judgment and direct that within a period of four months,
          the enquiry shall be completed by starting from the stage
          of service of show cause notice and consideration of the
          reply, if any, filed in accordance with the standing orders
          holding the field. The respondent No. 1 shall be re-instated F
          to service but without any back wages and other service
          benefits and his re-instatement shall be solely for the
          purpose of completing the departmental proceedings. His
          entitlements, if any, would be adjudicated by the authorities
          depending upon the result of the disciplinary proceedings." G
           8. Keeping in view the aforesaid position of law indicated
     in the aforesaid decisions, we are of the view that the course
     adopted in the two cases above, is to be followed. There shall
     not be any reinstatement but the proceedings shall continue from
     the stage where it stood before the alleged vulnerability surfaced.   H
    790       SUPREME COURT REPORTS                  [2008] 13 S.C.R.


A         9. Learned counsel for the writ petitioner-respondent sub-
    mitted that he has already retired and, therefore, he is not inter-
    ested in pursuing the remedy. He may be given the chance of
    moving the authorities for varying the order of termination to
    one of compulsory retirement. If any representation in this re-
8   gard is made to the concerned authority, the same shall be con-
    sidered in its proper perspective. We express no opinion in
    that regard.

          10. The appeal is allowed to the aforesaid extent.

C D.G.                                        Appeal Partly allowed.




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