(Dhananjaya Y. Chandrachud, C.J. and J.B. Pardiwala and Manoj Misra, JJ.)
Civil Appeal No. 7448 of 2023 [Arising out of SLP (C) No. 18282/2019], decided on November 3, 2023
Union of India and Others _________________________ Appellant(s);
v.
Jasbir Singh ____________________________________ Respondent.
With
Special Leave Petition (C) Nos. 24892-24893/2019
Civil Appeal No. 7448 of 2023 (Arising out of SLP (C) No. 18282/2019) and Special Leave Petition (C) Nos. 24892-24893/2019
The Judgment of the Court was delivered by
Manoj Misra, J.:—
1. At the outset we may observe that though there are three connected Special Leave Petitions (i.e., SLP (C) Nos. 18282 of 2019, 24892 of 2019 and 24893 of 2019) but this judgment deals with only SLP (C) No. 18282 of 2019, as the remaining two, though inter-related with each other, do not have a causal connection with the one which we propose to decide by this judgment. Therefore, this judgment deals only with SLP (C) No. 18282 of 2019, which was heard by us. The remaining two are de-tagged to be listed separately in due course.
SLP (C) No. 18282 of 2019
2. Leave granted.
Facts
3. The respondent (Jasbir Singh) was removed from service vide order dated 31.03.1994 on the ground that he overstayed on leave and had furnished fabricated medical certificate. This order of removal was subjected to an unsuccessful departmental appeal and revision. Having failed in both, the respondent instituted an Original Suit No. 98 of 1998 for a declaration that the order removing him from service and the subsequent appellate and revisional orders are illegal and void. In addition to the declaratory relief, the respondent sought consequential service benefits also.
4. The above suit was dismissed on 07.02.2005 by the Court of Additional Civil Judge (Sr. Div.). Against which, a Civil Appeal No. 309 of 2005 was filed by the respondent, which was allowed by judgment and decree dated 04.02.2011. Operative portion of the judgment and order of the appellate court dated 04.02.2011 reads as under:—
“35. By attending the issues no. 1,2,3,5 and 6A of the learned lower Court and reversing the findings on the issue no. 4, the judgment and decree of the learned lower Court dismissing the suit is set aside and the suit of the plaintiff is ordered to be decreed to the effect that the impugned order bearing No. V-15014/13/34/SSTPS/Disc/94-861 dated 31.3.1994, by virtue of which the plaintiff was dismissed from service, and the impugned appellate order bearing NO. V11014/52/Disc/94-958 dated 30/31.51994, by virtue of which the revision of the plaintiff was dismissed are illegal, unlawful, ultra-vires, unconstitutional against the principles of natural justice and rules, cryptic and punitive in nature. Therefore, null and void and not binding on the plaintiff. However, the plaintiff is not provided with any benefit of the pay and to start a de novo enquiry against the plaintiff/appellant by adopting the proper procedure because order have been set aside on technical ground, and in case the department opts to start the same. The same be done so within three months from today in case the department fails to start with de novo enquiry on the basis of the allegations of the charges levelled against the plaintiff within 3 months, then the plaintiff/appellant shall be entitled to the back wages and service benefits from the date of the order of removal till age of superannuation in case he has crossed the age of superannuation and in case he is reinstated in service till his reinstatement (as the case may be) along with interest at the rate of 6 % per annum till payment and shall be entitled to continuity of service and other attached benefits till his entitlement. Keeping into view the circumstances of the case parties are to bear their own costs. Appeal is accepted accordingly. Decree sheet be prepared accordingly.”
5. Abiding by the appellate court’s decree, a fresh enquiry proceeding was instituted against the respondent. In these proceedings, the respondent took a plea that since the civil court had directed for a de novo enquiry, a fresh charge-sheet ought to have been issued and served upon him. This objection of the respondent was not accepted, and it appears the enquiry proceeded by recording statement of witnesses, some of whom were not enlisted in the charge-sheet. Finally, a fresh order of removal from service was passed against the respondent on 15.09.2011. This order was questioned in a departmental appeal, which was dismissed on 22.02.2012.
6. Aggrieved with the fresh order of removal and dismissal of the appeal, the respondent instituted a fresh Civil Suit No. 7 of 2012, which was decreed by the Court of Civil Judge (Jr. Div.) Batala on 24.08.2015. The trial court observed that in the previous round of litigation, the order of removal was set aside with liberty to hold a de novo enquiry, therefore a fresh charge-sheet ought to have been issued and in absence whereof, as also that some witnesses who were not enlisted in the charge-sheet were examined, the enquiry stood vitiated. In consequence, the suit was decreed in the following terms:
“14. In view of my findings on issues above, the suit for declaration filed by the plaintiff is decreed with costs to the effect that the impugned order bearing no. V- 15014/CISF/STEPS/DISC (U/R36/JS/2011/8388 dated 15.09.2011 by virtue of which the plaintiff was removed from service and the impugned appellate order bearing no. V-15012/appeal/JS Sisc/NZ-II/1013 dated 22.02.2012 are hereby decline as illegal wrongful, null & void etc. and that the plaintiff is entitled to be reinstated with full back wages and all service benefits from 31.03.1994 and mandatory injunction is hereby granted directing the defendants to pay all the monetary service benefits including full back wages w.e.f. 31.03.1994 to 09.05.2011 along with interest at the rate of 6% per annum; from 10.05.2011 onwards along with interest at the rate of 18% per annum. Applications pending, if any, are disposed of being not pressed…”
7. The decree of the trial court was challenged by the defendants (appellants herein) in First Appeal No. 2 of 2017 before the Court of Additional District Judge, Gurdaspur. This first appeal was dismissed on 26.07.2018.
8. Aggrieved by the judgment and decree of the two courts below, the appellants, who were the defendants, filed regular Second Appeal No. 47 of 2018 in the High Court of Punjab and Haryana at Chandigarh. The High Court summarily dismissed the second appeal vide order dated 10.01.2019 by relying on a decision of this Court in Chairman-cum-Managing Director, Coal India Ltd. v. Ananta Saha1, wherein it was observed that in the event of a de novo enquiry, the entire earlier proceeding including the charge-sheet would stand effaced and, therefore, it would not be permissible to proceed against the incumbent on the earlier charge-sheet.
9. Questioning the judgment and decree of the courts below, this appeal has been filed.
10. We have heard Mr. R. Bala, Senior Advocate, for the appellants and Mr. Balaji Srinivasan, Advocate, for the respondent.
Submissions on behalf of the Appellants
11. On behalf of the appellants, it has been submitted that the courts below failed to consider that if an enquiry is vitiated for any technical reason, then liberty is to be given to conduct a fresh enquiry from the stage where the defect had crept in. Thus, there could be no automatic reinstatement with full back wages if the order of removal/dismissal is found faulty for a technical reason. Our attention was invited to paragraphs 47 and 48 of the judgment in Ananta Saha (supra), which are reproduced below:
“47. It is a settled legal proposition that the result of the fresh enquiry in such a case relates back to the date of termination. The submissions advanced on behalf of the appellants that the result of the enquiry in such a fact situation relates back to the date of imposition of punishment, earlier stands fortified by a large number of judgments of this Court and particularly in R. Thiruvirkolam v. Presiding Officer [(1997) 1 SCC 9 : 1997 SCC (L&S) 65 : AIR 1997 SC 633], Punjab Dairy Development Corpn. Ltd. v. Kala Singh [(1997) 6 SCC 159 : 1997 SCC (L&S) 1434 : AIR 1997 SC 2661] and Graphite India Ltd. v. Durgapur Projects Ltd. [(1999) 7 SCC 645]
48. In ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30 : (2009) 1 SCC (L&S) 126 : AIR 2009 SC 161], this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the enquiry afresh from the stage where it stood before the alleged vulnerability surfaced. However, for the purpose of holding fresh enquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages, etc. is determined by the disciplinary authority in accordance with law after the fresh enquiry is concluded.”
(Emphasis supplied)
12. In a nutshell, the submission of the learned counsel for the appellants is that the courts below should not have allowed benefits of back wages and continuity in service. Rather, opportunity to conduct an enquiry, after removing the technical defect, should have been accorded.
Submissions on behalf of the respondent
13. Per contra, the learned counsel for the respondent submitted that in the first round of litigation, the appellate court, vide order dated 04.02.2011, had permitted the department to start a de novo enquiry against the respondent within a period of three months, failing which, the respondent was entitled to full back wages and service benefits from the date of removal along with interest. As de novo enquiry was not conducted in the manner required by law, the benefit under the earlier decree, which had attained finality, became available to the respondent, therefore, in the second round of litigation, the appellants cannot deny the benefit of back wages to the respondent in the terms decreed by the courts below.
Discussion and Analysis
14. We have considered the rival submissions and have perused the record.
15. At the outset, we may point out that on 26.07.2019 when the special leave petition was pressed, a statement was made by the then Additional Solicitor General, appearing on behalf of the appellants, that the respondent has been reinstated in service and the Court may consider the question of grant of back wages. Otherwise also, it has come on record that the respondent has attained the age of superannuation on 30.09.2017. In these circumstances, the learned counsel for the appellants has confined his challenge to the payment of full back wages to the respondent for the period starting from his removal from service (i.e., 31.03.1994) up to the date of trial court’s decree (i.e., 24.08.2015) passed in the second suit (i.e., O.S. No. 7 of 2012).
16. Having perused the record, we find that the first order of removal from service dated 31.03.1994 was found bad in law for a technical defect in the enquiry. Consequently, the civil court, though declared the order removing the respondent from service bad in law, gave liberty to the department to carry out a de novo enquiry on the charges levelled against the respondent. The specific words used in the operative portion of the order passed by the appellate court in that regard, as found in the record of these proceedings, are reproduced below:
“…. However, the plaintiff is not provided with any benefit of the pay and to start a de novo enquiry against the plaintiff/appellant by adopting the proper procedure because order have been set aside on technical ground, and in case the department opts to start the same. The same be done so within three months from today in case the department fails to start with de novo enquiry on the basis of the allegations of the charges levelled against the plaintiff within 3 months, then the plaintiff/appellant shall be entitled to the back wages and service benefits from the date of the order of removal…”
17. The use of the words “on the basis of the allegations of charges levelled against the plaintiff” were equivocal, admissible to dual interpretation, and might have misled the department into a belief that a fresh charge-sheet was not needed as there was liberty to hold fresh enquiry on the charges already leveled on the plaintiff (respondent herein). In these circumstances, the first decree to the extent it directed payment of back wages did not become operable on account of a faulty enquiry in pursuance thereof. As a result, when the second order of removal was passed, if it suffered from any other technical defect, in our view, same consequences should have followed as contemplated in paragraphs 47 and 48 of this Court’s judgment in Ananta Saha (supra). That is, the department should have been given liberty to hold an enquiry in accordance with law by removing the defect that had crept in, and the payment of back wages should have been made subject to the result of that enquiry. For the reasons above, impugned decree deserves to be modified as to make it in conformity with the law laid down in paragraphs 47 and 48 of this Court’s judgment in Ananta Saha (supra).
18. However, as the respondent has been reinstated in compliance of the impugned decree and has also attained the age of superannuation on 30.09.2017, a fresh enquiry would serve no useful purpose. We, therefore, do not consider it appropriate to interfere with the impugned decree to the extent it declares the removal from service as illegal and void and directs for reinstatement with benefit of continuity in service. In so far as back wages for the period starting from 31.03.1994 up to 24.08.2015 (i.e., the date of decree in the second suit) is concerned, taking into account that the respondent has not been exonerated of the charges on merits, and he has not served during all this period, we deem it appropriate to quantify the benefits of back wages for this period to a lump sum amount of Rs. 5 lacs (five lacs rupees) and direct that the impugned decree shall stand modified to that extent. The rest of the decree is affirmed.
19. The appeal is partly allowed in the terms above. Parties to bear their own costs.
20. Pending application(s), if any, stand disposed of.
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1 2011 (5) SCC 142
