Kalavati vs Mirza Kaisar Baig

CIVIL APPEAL NO. 6776 OF 2022

The Inspector of Panchayats and District Collector, Salem ...Appellant(s)

Versus

S. Arichandran & Ors. ...Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court of Judicature at Madras dated

29.10.2021 in Writ Appeal No. 2735 of 2021 by which the Division Bench

of the High Court has dismissed the said appeal and has confirmed the

order passed by the learned Single Judge directing the appellant to

reinstate the respondent – original writ petitioner into service and pay

arrears payable to him, the District Collector, Salem District, Tamil Nadu Signature Not Verified Digitally signed by SNEHA Date: 2022.09.23

has preferred the present appeal.

16:26:05 IST Reason:

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2. That a departmental inquiry was initiated against the respondent,

who was a Panchayat Assistant, for having committed the misconduct of

misappropriation of funds pertaining to Samuthram Panchayat in

connivance with the erstwhile President of the said Panchayat. By order

dated 25.09.2006, an order of punishment was passed against the

respondent – delinquent. The order of punishment was the subject

matter of Writ Petition No. 1710 of 2007 before the High Court.

2.1 By judgment and order dated 07.01.2009, the High Court allowed

the said Writ Petition by quashing the order of dismissal and remanded

the matter for fresh disposal observing that no inquiry whatsoever was

held as required under the law. That thereafter, on remand, the inquiry

was conducted after affording an opportunity to the delinquent to defend

his case. However, without giving a copy of the Inquiry Report to the

delinquent and without calling for his comments on the Inquiry Officer’s

Report, a fresh order dated 11.06.2009 came to be passed. The

delinquent – respondent filed a writ petition before the High Court by way

of Writ Petition No. 1152 of 2012.

2.2 The learned Single Judge allowed the said writ petition and

ordered reinstatement with back wages by observing that the order of

dismissal dated 11.06.2009 was in breach of principles of Natural Justice

as the copy of the Inquiry Report was not given to the delinquent and

without calling for his comments on the Inquiry Officer’s Report, the

order of dismissal was passed. The judgment and order passed by the 2 learned Single Judge was the subject matter of appeal before the

Division Bench.

2.3 By the impugned judgment and order, the Division Bench of the

High Court has dismissed the said appeal and has confirmed the

judgment and order passed by the learned Single Judge to reinstate the

respondent with full back wages. The impugned judgment and order

passed by the Division Bench of the High Court is the subject matter of

present appeal before this Court.

3. Shri Amit Anand Tiwari, learned AAG appearing on behalf of the

appellant has vehemently submitted that the respondent was charge

sheeted for a very serious offence of misappropriation of the amount

belonging to the Panchayat. It is submitted that if the Hon’ble High

Court found the order of punishment in breach of Natural Justice, in that

case, the matter ought to have been remanded to the Disciplinary

Authority to conduct the inquiry form the point that it stood vitiated.

Reliance is placed on the decisions of this Court in the case of

Chairman, Life Insurance Corporation of India and Ors. Vs. A.

Masilamani, (2013) 6 SCC 530 as well as in the case of State of Uttar

Pradesh and Ors. Vs. Rajit Singh, 2022 SCC Online SC 341.

3.1 Making above submissions and relying upon above decisions, it is

prayed to set aside the impugned judgments and orders passed by the

Division Bench as well as the learned Single Judge of the High Court

3 and to remit the case to the Disciplinary Authority to conduct the inquiry

from the point that it stood vitiated.

4. Present appeal is vehemently opposed by Shri S. Nagamuthu,

learned Senior Advocate appearing on behalf of the respondent.

4.1 it is submitted by Shri S. Nagamuthu, learned Senior Advocate

appearing on behalf of the respondent that in the facts and

circumstances of the case, neither the learned Single Judge nor the

Division Bench have committed any error in setting aside the order of

dismissal and ordering reinstatement with full back wages.

4.2 It is submitted that when earlier the order of dismissal was passed,

the same was set aside by the learned Single Judge and the matter was

remitted back to the Disciplinary Authority to pass fresh order after

holding the inquiry and despite the same again the order of dismissal

came to be passed in breach of principles of Natural Justice. It is

submitted that therefore as rightly observed by the Division Bench, time

and again, the opportunities are not to be given to the Disciplinary

Authority to pass fresh orders. It is submitted that therefore, the Hon’ble

High Court has rightly not passed any order of remand to the Disciplinary

authority.

4.3 It is further submitted that in the present case, as such, there is no

loss caused to the Panchayat and the entire amount has been deposited

by the Panchayat President.

4 4.4 It is further submitted that the respondent is suffering since 2006

and therefore, the impugned judgment and order passed by the High

Court may not be interfered with by this Court in exercise of powers

under Article 136 of the Constitution of India.

5. We have heard the learned counsel appearing on behalf of the

respective parties at length.

6. At the outset, it is required to be noted that the learned Single

Judge has set aside the order of dismissal passed by the Disciplinary

Authority on the ground that the same was in breach of principles of

Natural Justice, in as much as, the copy of the Inquiry Officer’s Report

was not furnished to the delinquent and his comments were not called

for on the Inquiry Officer’s Report. It is to be noted that the respondent –

delinquent was facing the departmental inquiry with respect to a very

serious charge of misappropriation. Therefore, the High Court ought to

have remitted the matter back to the Disciplinary Authority to conduct the

inquiry from the point that it stood vitiated.

6.1 At this stage, a recent decision of this Court in the case of Rajit

Singh (supra), in which this Court had considered its earlier decision in

the case of A. Masilamani (supra) is required to be referred to. In

paragraph 15, it is observed and held as under:-

“15. It appears from the order passed by the Tribunal that the Tribunal also observed that the enquiry proceedings were against the principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the 5 delinquent officer. As per the settled proposition of law, in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge sheet, which are alleged to have not been given to the delinquent officer in the instant case. In the case of Chairman, Life Insurance Corporation of India v. A. Masilamani, (2013) 6 SCC 530, which was also pressed into service on behalf of the appellants before the High Court, it is observed in paragraph 16 as under:— “16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same.

(Vide ECIL v. B. Karunakar [(1993) 4 SCC 727], Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293], U.P. State Spg. Co.

Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30]).”

6.2 Applying the law laid down by this Court in the aforesaid decisions

to the facts of the case on hand and as the order of dismissal has been

set aside on the ground that the same was in breach of principles of

Natural Justice, the High Court ought to have remitted the case

concerned to the Disciplinary Authority to conduct the inquiry from the

point that it stood vitiated and to conclude the same after furnishing a

copy of the Inquiry Report to the delinquent and to give opportunity to

the delinquent to submit his comments on the Inquiry Officer’s Report.

7. In view of the above and for the reasons stated above, present

appeal succeeds in part. The impugned judgment(s) and order(s) 6 passed by the Division Bench as well as learned Single Judge of the

High Court ordering reinstatement with back wages are hereby quashed

and set aside. The case concerned is remitted to the Disciplinary

Authority to conduct the inquiry from the point that it stood vitiated and to

conclude the same after furnishing a copy of the Inquiry Officer’s Report

and after giving an opportunity to the delinquent to submit his comments

on the Inquiry Officer’s Report. The aforesaid exercise be completed

within a period of six months from today. However, at the same time,

considering the fact that earlier also the dismissal order was set aside on

the ground that the same was found to be in breach of principles of

Natural Justice and the matter was remitted back and thereafter again

when the fresh order of dismissal has been passed, which is again found

to be in violation of principles of Natural Justice and again the matter is

to be remitted back, we allow the present appeal with costs to be paid by

the appellant to the respondent - delinquent quantified at Rs. 50,000/-,

which shall be paid to the respondent – delinquent within a period of six

weeks from today.

Present appeal is accordingly allowed to the aforesaid extent.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. SEPTEMBER 23, 2022. [KRISHNA MURARI]

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