The Government Of India And Ors. vs V.Shanmuganathan
- Neutral2018 INSC 992
Ratio decidendi
The rule this decision rests on
Where a disciplinary punishment of removal from service is found by a court to be disproportionate and is quashed, but the employee is not immediately reinstated due to an appeal filed by the employer and subsequently receives no communication permitting reinstatement, the appropriate substituted punishment is compulsory retirement rather than removal from service, and the employee is entitled to retiral benefits calculated from the date the employer's communication effectively prevented reinstatement during the pendency of the appeal proceedings.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
GOVERNMENT OF INDIA AND OTHERS Appellant(s)
Versus
V. SHANMUGANANTHAN Respondent(s)
O R D E R
1. Heard learned counsel for the parties at length.
2. This appeal by special leave is directed against the judgment and order
dated 19.01.2007 passed by the High Court of Judicature at Madras in Writ
Petition No. 13804 of 2001 whereby the High Court allowed the writ petition
filed by the respondent herein and set aside the order of punishment of
removal from service imposed on the respondent while holding that the
respondent is not entitled to any back wages.
3. This appeal relates to a checkered career.
4. The starting point of this litigation is transfer of the respondent from
New Delhi to Oil Duliajan (Assam) in the month of December, 1993. At that
point of time, the respondent was working as an Inspector of Central
Industrial Security Force (hereinafter referred to as the ‘CISF’) in New Delhi.
He was required to report at CISF Unit, Oil Duliajan on 28.12.1993.
However, the respondent failed to do so and did not join after getting the
relieving order on 13.12.1993.
5. Since the respondent did not report for duty for 2 years and 4 months, 2
despite the call up notice being sent to him on 30th May, 1994, a charge
memorandum under Rule 34 of CISF Rules, 1969 was issued to him on 21st
August, 1995 for unauthorizedly overstaying the joining time. On 20 th
October, 1995, the respondent submitted his representation and pleaded not
guilty. The respondent asserted that this inability of his to report, was owing
to him meeting with an accident in Delhi on 06.12.1993.
6. Thereafter, disciplinary proceedings were initiated against the
respondent. The disciplinary authority, Commandant, CISF Unit, Oil
Duliajan passed an order on 31.07.1997 exonerating the respondent from
the charges.
7. This order was suomoto reviewed by DIG, CISF, Oil Duliajan on 13.08.2000
who awarded penalty of withholding one increment for a period of 3 years
with cumulative effect. The respondent went on a revision against the same
wherein, Secretary, Ministry of Home Affairs set aside the suomoto review
but directed a de novo enquiry from the stage of conclusion of evidence on
ground of discrepancy in medical papers.
8. During the course of this de novo enquiry, the Disciplinary Authority
awarded penalty of “removal from service” to the respondent on 02.02.2000
which was therein confirmed by the Appellate Authority on 08.05.2000 and
Revisional Authority on 24.05.2001.
9. The respondent approached the Madras High Court against the same which
in the exercise of its writ jurisdiction partly allowed the appeal and quashed
the punishment for being disproportionate and exorbitant. However, the
respondent was held not to be entitled to backwages, though period of his 3
leave was to be counted for all service benefits.
10. Pursuant to this order of Madras High Court, the respondent
approached the appellants for reinstatement in service. This was, however,
responded to by a letter dated 7th/8th June, 2007, which reads as under,
“REGD./AD POST Government of India Office of the Inspector General Central Industrial Security Force/NES (Ministry of Home Affairs)
Premises No.553, Kolkata Township, Kasba, Kolkata107
No.V14013/NES/LC/2001/3215 Dated:07/08 June,07
To V.Shanmuganathan,ExInsp/Min. (Address as per writ petition) S/o K. Vairakannu, Plot No.57, Kannammal Street, Gurusamy Nagar, Madanandapuram, Porur, Chennai 600 116
Subject: WP NO. 13804/2001 FILED BY EXINSP/MIN.V. SHANMUGANATHAN FORMERLY OF CISF UNIT 12TH RES. BN. FARAKKA IN HIGH COURT OF JUDICATURE AT MADRAS
It is to inform you that your application dated 12.05.2007 for re instatement in service with reference to judgment and order dated 19.01.2007 passed by the Hon’ble High Court of Judicature at Madras has been received by FHQrs. A SLP has been filed before the Hon’ble Supreme Court on 10.05.2007 against the above judgment order. On disposal of the same further action will be taken.
(VED PRAKASH) ADDL.DY.INSPECTOR GENERAL FOR INSPECTOR GENERAL/NES”
11. It is owing to this communication that the respondent claims that he could
not join the services. The respondent superannuated in 2010.
12. Taking into consideration all the facts and after hearing the learned 4
counsel for the parties at length, we think it proper to modify the order
passed by the High Court to the following extent:
The punishment of the respondent is substituted to be of “compulsory
retirement from service” from that of “removal from service”. However, the
respondent is entitled to retiral benefits, as per Rules, from the date of the
letter issued by the appellants, owing to which he was not reinstated in the
service pending disposal of present proceedings, i.e. from 07 th/08th June,
2007.
13. With the above observations, this appeal is disposed of.
14. No order as to costs.
........................J. (N.V. RAMANA)
........................J. (MOHAN M. SHANTANAGOUDAR)
New Delhi, October 25, 2018
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