Rajasthan Housing Board vs Roshan Lal Saini And Ors.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 5919-5920 OF 2019 (Arising out of Special Leave Petition (Civil) No(s). 15954-55 of 2019)

RAJASTHAN HOUSING BOARD ….. APPELLANT(S)

VERSUS

ROSHAN LAL SAINI AND OTHERS ….. RESPONDENT(S)

WITH

SPECIAL LEAVE PETITION (CIVIL) NO. 6342 OF 2017

JUDGMENT

SANJIV KHANNA, J.

A. CIVIL APPEAL NO(S). 5919-5920 OF 2019

Leave granted.

2. Impugned order and judgment dated 18 th May, 2015 passed by

the High Court of Judicature for Rajasthan at Jaipur in D.B. Civil

Special Appeal (Writ) No. 1265 of 2014 upholds the order and Signature Not Verified Digitally signed by GULSHAN KUMAR judgment of the learned Single Judge dated 23 rd May, 2014 ARORA Date: 2019.07.29 16:57:56 IST Reason:

allowing the writ petition filed by the first respondent- Roshan Lal

Saini, quashing the order dated 3rd January, 2003 passed by the Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 1 appellant- Rajasthan Housing Board under Rule 86(3) of the

Rajasthan Service Rules removing the first respondent from

service on the ground of unauthorised absence for three months,

which order of dismissal was upheld by the Labour Court. While

quashing the dismissal and remanding the matter to the Labour

Court, learned Single Judge had further directed:

“[T]he … Housing Board shall be at liberty to adduce evidence before the labour Court as expeditiously as possible but not later than three months from the date now fixed by this court for the parties to appear before the Labour Court.”

Agreeing, the Division Bench in the impugned judgment has not

interfered with the above directions.

3. The impugned judgment also upholds the finding of the learned

Single Judge quashing the second order of dismissal dated 25 th

October, 2013 passed in the disciplinary inquiry proceedings

initiated for embezzlement of funds, irregular payments, missing

vouchers etc. vide the charge sheet served on the first respondent

on 10th October, 2002.

4. The Special Leave Petition states that the first respondent has

filed as many as 48 cases, which highlights the long and

chequered history of (over) litigation that has contributed to

somewhat conflicting orders in different cases. To avoid prolixity,

and as a fairly limited issue arises for consideration before us, we Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 2 need not for the purpose of the present order refer to in detail the

gamut of disputes and litigations, albeit we will be referring to the

relevant facts in brief.

5. The first respondent, was suspended vide order dated 17th

August, 2002 on the basis of a prima-facie investigation in the

charges for embezzlement of funds, irregular payments, missing

vouchers etc. to the extent of Rs.1,49,00,000/- (rupees one crore

forty-nine lakhs), during the period when the first respondent was

working as Junior Accountant with the petitioner Housing Board.

Consequently, three First Information Reports were registered in

the year 2002 for the periods between 1995-1998, 1998-2001 and

2000-2002, in which the first respondent was arrested and had

remained in custody. It is stated that the criminal prosecutions are

still pending.

6. As noticed above, the first respondent was served with the first

charge sheet on 10th October, 2002 initiating the disciplinary

inquiry. Subsequently, on 23rd November, 2002, a second charge

sheet was served on account of wilful absence from 31 st August,

2002.

7. The first respondent had instituted a civil suit in which an interim

order was passed restraining the appellant from proceeding in Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 3 respect of the charges, except the charge for wilful absence. It is

stated that a Division Bench of the High Court vide order dated

18th January, 2010 had upheld this order. Copy of these orders

are not available on record but assertions to this effect are made

in the pleadings on record before us.

8. By ex parte order dated 3rd January, 2003, the first respondent

was removed from service under Rule 86(3) of the Rajasthan

Service Rules on the ground of wilful absence. Departmental

appeals preferred by the first respondent were dismissed.

9. The first respondent had then preferred a writ petition before the

High Court of Rajasthan at Jaipur, which was not entertained on

the ground of alternative remedy before the Labour Court. This

order attained finality as the review petition, intra-court appeals

and Special Leave Petition were dismissed.

10. The first respondent thereupon approached the Labour Court vide

LCR No. 38 of 2011 with an interim application for stay of the

dismissal order, which application was rejected by the Labour

Court vide order dated 29th May, 2013.

11. The first respondent had preferred Writ Petition No. 9480 of 2013

before the High Court of Rajasthan at Jaipur challenging the

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 4 interim order of the Labour Court dated 29 th May, 2013. The

present Special Leave Petition arises from this writ petition.

12. In the meanwhile, the first respondent for some unfathomable

reason filed Writ Petition (Civil) No. 8611 of 2007, wherein vide

order dated 9th September, 2009 a Single Judge of the Rajasthan

High Court had issued directions that the remaining part of the

inquiry should be completed within four months. This order was

upheld by a Division Bench vide order dated 9th May, 2011.

These orders were passed notwithstanding the fact that the first

respondent was already removed from service on the ground of

wilful absence vide order dated 3rd January, 2003.

13. In view of the aforesaid directions, the disciplinary proceedings on

the first charge sheet recommenced and the inquiry report dated

28th May, 2012 held that all charges stood proved. Consequently,

order dated 25th October, 2013 dismissing the first respondent

was passed.

14. The first Respondent did not prefer a statutory appeal to challenge

the order of dismissal dated 25 th October, 2013. Neither did he

make it a subject matter of challenge before the Labour Court. He

invoked writ jurisdiction vide Civil Writ Petition No. 19668 of 2013

filed before the Rajasthan High Court.

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 5

15. In the meanwhile, the Labour Court by its order dated 5 th

November, 2015 upheld the first order of dismissal dated 3 rd

January, 2003 on the ground of wilful absence. This order was

passed pursuant to the directions of the learned Single Judge in

the order dated 23rd May, 2014 in Writ Petition No. 9480 of 2013

and of the Division Bench in the impugned order and judgment

dated 18th May, 2015 in D.B. Civil Special Appeal (Writ) No. 1265

of 2014.

16. The first respondent has preferred Writ Petition No. 5205 of 2016

against the order of the Labour Court dated 5 th November, 2015

which is stated to be pending before a Single Judge of the

Rajasthan High Court.

17. The second order of dismissal dated 25th October, 2013 was also

made subject matter of challenge by the first respondent

preferring an amendment application in Civil Writ Petition No.

9480 of 2013 in which the challenge was to the interim order

dated 29th May, 2013 passed by the Labour Court rejecting the

first respondent’s application for stay of the first dismissal order

dated 3rd January, 2003. By order dated 28th November, 2013, the

first respondent was permitted to amend this writ petition to raise a

challenge to the order of dismissal dated 25th October, 2013. Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 6

18. Writ Petition No. 9480 of 2013 was allowed by the learned Single

Judge vide order dated 23rd May, 2014 by recording detailed

findings on the first inquiry resulting in the order dated 3 rd January,

2003, the fairness or propriety of the inquiry proceedings to prove

the charge for wilful absence. This was notwithstanding the fact

that order under challenge dated 29 th May, 2013 passed by the

Labour Court was only an interim order. At the same time, the

learned Single Judge held that the appellant was set at liberty to

adduce the evidence before the Labour Court. Issue and question

of wilful absence on merits was, therefore, left open for the Labour

Court to decide.

19. Thereafter, the learned Single Judge examined challenge to the

dismissal order dated 25th October, 2013 and held that it was

passed on the basis of the inquiry report which was wholly illegal,

arbitrary and unconstitutional on the ground that sufficient

opportunity was not granted to the first respondent to defend the

charge sheet. Notwithstanding the direction(s) of the High Court

referred in paragraph 12 above to conclude the inquiry

proceedings within four months, the disciplinary authority, it was

observed, should have awaited outcome of the contempt petitions

that had been preferred by the first respondent. Further, the

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 7 appellant had failed to produce original vouchers, 544 in number,

which it was held had been verified by different officers.

20. Impugned order and judgment dated 18 th May, 2015 passed by

the Division Bench of the High Court has referred to the reasons

given by the Learned Single Judge specifically rejecting the

contention of the first respondent that the Labour Court lacked

jurisdiction for the first respondent was not a ‘workman’.

21. Impugned judgment dated 18th May, 2015 also records that the

Labour Court when seized of the matter had afforded

opportunities to the first respondent to cross-examine the

prosecution witnesses but on account of repeated adjournments

sought by him, the Labour Court was unable to proceed with the

matter. For the reasons elucidated in paragraph 18 above, we

would observe and hold that the Division Bench has not made

final and conclusive findings on the charge and allegation of wilful

absence, which had resulted in the order of dismissal dated 3 rd

January, 2003. Findings as recorded in the impugned order would

be treated as tentative and prima facie and not final or conclusive,

for otherwise there was no reason and ground for the learned

Division Bench to affirm the direction that the appellant was at

liberty to adduce evidence before the Labour Court.

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 8

22. The Division Bench referring to the second order of dismissal

dated 25th October, 2013 observed that the same could not have

been passed and at best findings could be recorded on the

charges that were not subject matter of the departmental inquiry in

the first proceedings, as criminal cases were pending against the

first respondent. Even if there were some additional charges on

which the departmental inquiry was made, the second order of

dismissal could not have been passed. This order of the Division

Bench, however, does not specifically clarify the position as to the

legal effect of the second order of dismissal dated 25 th October,

2013, and the respective rights of the parties. Further, the

findings on merits recorded by the learned Single Judge on the

second order of dismissal dated 25th October, 2013 were not

interfered with.

23. Notwithstanding the said position, with reference to the second

order of dismissal dated 25 th October, 2013, in para 8 and 9 of the

impugned order, the Division Bench has commented on some

other writ petitions including Writ Petition No.1511 of 2008 filed by

the petitioner by which departmental enquiry proceedings against

the charges of embezzlement of funds, etc. were separated and it

was observed that as the first dismissal order dated 3 rd January,

2003 had been challenged before the Labour Court, it was open to

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 9 the first respondent to challenge the separation order before the

Labour Court that was seized of the matter. Two writ petitions filed

by the first respondent challenging special audit of the accounts

were dismissed. D.B. Special Appeal No. 1636 of 2014 in which

the first respondent had sought prayer for suspension allowance

was dismissed observing that the issue was not required to be

considered by the Single Judge and it was open to the first

respondent to raise the issue before the Labour Court. Lastly,

reference was made to Special Criminal Misc. Petition No. 525 of

2007, 539 of 2007 and 1127 of 2009 in which interim orders had

been passed staying the criminal proceedings and arrest.

Reference was also made to Special Criminal Misc. Petition No. 8

of 2015 in which again arrest of the first respondent had been

stayed in respect of a fourth criminal case filed against him. It was

directed that the four petitions would be clubbed and listed before

the appropriate bench for orders.

24. Impugned judgment also noticed that original records of

investigation had been summoned by the High Court in the first

three criminal miscellaneous matters and since 2007 stay orders

had been in operation. These original records of investigation

summed and retained by the High Court had gone missing. The

Registrar General was directed to carry out enquiries through the Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 10 Registrar (Vigilance) with regard to the missing records and

submit a report to the Registrar General, that would be placed

before the Chief Justice on administrative side.

25. From the aforesaid discussion, it is apparent that the Division

Bench and the Single Judge had failed to notice and did not

consider that Civil Writ Petition No. 9480 of 2013 was primarily

directed against an interim order passed by the Labour Court

refusing to stay the first order of dismissal dated 3 rd January,

2003. They have dealt with the issue and commented on the

order dated 3rd January, 2003 as if the order under challenge

before the Writ Court and the Appeal Court was the final order

passed by the Labour Court. As noticed earlier, the Labour Court

by its final order dated 5 th November, 2015 has upheld the first

order of dismissal dated 3rd January, 2003. The order dated 5 th

November, 2015 has been challenged by the first respondent in

Writ Petition No. 5205 of 2016 which is still pending before the

Single Judge. As elucidated above, the findings and observations

of the learned Division Bench and the Single Judge cannot be

regarded as findings and observations on the merit or demerits of

the charge of wilful absence as it was left to the appellant to lead

evidence and prove the charge before the Labour Court.

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 11

26. Once the order of dismissal dated 3 rd January, 2003 had been

passed, the High Court should not have directed continuation and

conclusion of the departmental proceedings pursuant to another

charge-sheet relating to embezzlement of funds, irregular

payments, missing vouchers, etc. On the said aspect, the learned

Division Bench and the Single Judge in the orders under

challenge have rightly observed that there cannot be two orders of

dismissal, yet have erroneously commented upon the enquiry

report and the second order of dismissal dated 25 th October, 2013.

This second order of dismissal should have been set aside on the

limited ground and reason that there cannot be two orders of

dismissal, leaving it open to the appellant to take steps and

recommence proceedings in the charge-sheet relating to

embezzlement of funds, irregular payments and missing vouchers

etc., should the first order of dismissal dated 3 rd January, 2003 be

set aside. In other words, departmental proceedings vide the

charge-sheet relating to embezzlement, irregular payments and

missing vouchers, etc. should, for the present, be kept in

abeyance. Reference in this regard can be made to the

Judgement of this Court in State of Maharashtra v. Vijay Kumar

Aggarwal and Another1 wherein it has been held as under: 1

(2014) 13 SCC 198 Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 12 “11...The employee who has already been dismissed from service cannot be imposed any other penalty on the conclusion of inquiry pertaining to the charge-sheet dated 6-7-1988. Therefore, at this stage no purpose is going to be served to continue with the inquiry into the said charge-sheet. At the same time, it is also to be borne in mind that Respondent 1 has challenged dismissal order and the matter is pending before the Tribunal. In case the said dismissal is set aside by the Tribunal and/or the High Court/this Court and Respondent 1 is reinstated in service as a result thereof, the relationship of employer-employee between the parties shall also stand restored. In that eventuality, it would be permissible for the appellant to proceed with the inquiry relating to charge-sheet dated 6-7-1988 as well...”

27. Accordingly, the present appeal is partly allowed whereby we

agree that the second order of dismissal dated 25 th October, 2013

could not have been passed, and accordingly we would set aside

all observations and findings recorded by the Division Bench and

Single Judge with regard to the enquiry report dated 28 th May,

2012 with the direction that further proceedings pursuant to the

said enquiry report would be kept in abeyance and can be

recommenced in case the first dismissal order dated 3 rd January,

2003 is set aside and quashed. In case of recommencement, it

will be open to the first respondent to raise objections to the

enquiry report before the disciplinary authority, who would

consider the said objections. It would be equally open to the

disciplinary authority to rectify and correct mistakes or lapses, if

any, and proceed in accordance with law. Findings and Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 13 observations in the impugned order(s) would not restrict the

disciplinary authority from examining the charges and taking a

decision nor the first respondent from exercising his right to

defend. We have not made any observation on the merits of the

enquiry report or the procedure which has to be followed.

28. On the first aspect we would only make an important and relevant

clarification in view of the final order of the Labour Court dated 5 th

November, 2015. The impugned judgment of the Division Bench,

upholding the order of the Single Judge setting aside and

quashing the order of the Labour Court dated 29 th May, 2013

refusing to stay the first order of dismissal dated 3 rd January, 2003

had not directed reinstatement of the first respondent. The Labour

Court was to proceed in the matter and record findings on merits.

As noticed above, the Labour Court has already by its final order

dated 5th November, 2015 upheld the first order of dismissal dated

3rd January, 2003 and against this order the first respondent has

preferred Writ Petition No. 5205 of 2016 stated to be pending

before the Single Judge. This writ petition would be decided by

the learned Single Judge on merits without being influenced by

the impugned order(s) under challenge in the present appeal. We

also clarify that we have not interfered with the directions given in

the impugned judgment in paragraphs 10 to 19. The same would Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 14 be good and valid and will continue as directions and findings, in

spite of the present order.

29. Accordingly, the instant appeals are allowed in the above terms

and disposed of. In the facts of the case, there would be no order

as to costs.

B. SPECIAL LEAVE PETITION (CIVIL) NO. 6342 OF 2017

30. We do not find any good ground and reason to interfere with the

impugned order which only reduced the quantum of costs. The

Special Leave Petition is dismissed. We clarify we have not made

any comments on merits of the dispute between the parties.

.......................................................J. (MOHAN M. SHANTANAGOUDAR)

.....................................................J. (SANJIV KHANNA)

NEW DELHI;

JULY 29, 2019.

Civil Appeal(s) arising out of SLP (C) Nos. 15954-955 of 2019 & Anr. Page 15