JUDGMENT R.B. Misra, J.
1. The matter called twice non-appeared on behalf of the respondents. Counter-affidavit has been filed. Therefore, after hearing learned counsel for the petitioner and on the basis of the averment made in the counter-affidavit this matter is decided finally at this stage.
In this writ petition, a prayer has been made to quash the order dated 16.3.1993, terminating the services of the petitioner.
Heard Sri Jai Krishna Tiwari holding the brief of Sri Shashi Nandan, learned counsel for the petitioner.
2. The brief facts necessary for adjudication of the case are that the petitioner was appointed on 11.12.1975 as 'Pond Keeper' by the Chairman, Zila Parishad, Lalitpur, on temporary basis and subsequently, he was confirmed on 1.8.1977. The services of the petitioner was governed by Uttar Pradesh Chhetra Samiti and Zila Parishad Adhiniyam, 1961 and Zila Parishad Service Rules, 1970. By order dated 1.9.1992, the petitioner was placed under suspension. A charge-sheet was issued to him on 14.10.1992 alleging that the petitioner had entered in the room of accountant and under provocation has used un-parliamentary language and had misbehaved with the accountant. The petitioner has replied to the charge-sheet and denied the allegations. According to the petitioner, he has demanded certain documents which were supplied but no personal hearing was given to him and no opportunity was given to examine any of his witnesses or to cross-examine the witnesses produced on behalf of the department.
3. The relevant extract from Zila Parishad Service Rules, 1970, is applicable to the case of the petitioner is given as under :
"36. Procedure for disciplinary proceedings,--(1) No order (other than an order based on facts which have led to his conviction on a criminal charge) of dismissal, removal or reduction in rank (which includes reduction to a lower post or time-scale or to a lower stage in a time scale but excludes reversion to a lower post of a person, who is officiating in a higher post), shall be passed against any servant of the Zila Parishad unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the person charged of the facts and circumstances against him. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs an oral enquiry shall be held in respect of such of the allegations as are not admitted. At the inquiry such oral evidence will be heard as the enquiring officer considers necessary. The person charged shall be admitted to cross-examine as he may wish provided that the officer conducting the enquiry may for sufficient reason to be recorded in writing refuse to call a witness. Neither the Zila Parishad nor the person charged shall be entitled to be represented by a counsel. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The officer conducting the enquiry may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the person charged.
(2) Sub-rule (1) shall not apply :
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has held to his conviction on a criminal charge ; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be considered by that authority in writing, it is not reasonably practicable to observe the prescribed procedure ; or
(c) where the State Government is satisfied and directs accordingly that the interest of the security of the State it is not expedient to observe the prescribed procedure.
(3) If, in respect of any such person as aforesaid a question arises whether it is reasonably practicable to observe wholly or partly the procedure prescribed in Sub-rule (1), the decision thereon of the authority empowered to dismiss or remove or reduce in rank the person concerned shall be final.
37. Procedure to be followed after enquiry under Rule 36.--(1) After an enquiry against a person has been completed and after the punishing authority has arrived at provisional conclusions in regard to the penalty to be imposed, the person charged shall, if the penalty proposed is dismissal, removal or reduction in rank, be supplied with a copy of the proceedings prepared under Rule 36, excluding the recommendations, if any, in regard to the punishment made by the officer conducting the enquiry and given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence during the enquiry ;
Provided that if for sufficient reasons the punishing authority dis-agrees with any part or whole of the proceedings prepared under Rule 36 the point or points of such disagreement, together with a brief statement of the grounds thereof, shall also be communicated to the person charged along with the copy of the proceedings under Rule 36.
(2) Every order of dismissal, removal or reduction in rank shall be in writing and shall specify the charge or charges brought, the grounds of defence, if any, and the reasons for the order."
4. From perusal of the aforesaid rules, it appears that full departmental enquiry is to be held against delinquent official and the enquiry officer is bound to maintain the record of evidence and statements of finance and accounts thereof apart from affording an opportunity to the delinquent employee of alleged oral evidence and to cross-examine witnesses and copy of the proceedings prepared under 'Rule 36' is to be served upon the delinquent employee in order to enable him to make a proper reply to the proposed penalty.
5. According to para 11 of the writ petition, the inquiry officer has not held any enquiry inasmuch as neither witnesses have been examined nor has the petitioner been afforded an opportunity to cross-examine the persons on the basis of whose statements the findings of guilt has been recorded without maintaining records of the proceedings.
6. According to the petitioner, Rule 37 (2) further provides that every order of dismissal, removal or reduction in rank shall be in writing and shall specify the charge or charges, accounts of facts, evidence, if any, and the reason for order but however, the perusal of the impugned order indicates that none of the conditions imposed therein have been followed. Therefore, the dismissal order is not legally sustainable. According to para 18, the person involved in the alleged incident was also issued only warning and only show cause notice was issued to him. In view of reply submitted by him, only warning was issued to him by the Chairman, Zila Parishad.
7. Counter-affidavit has been filed, according to which the petitioner's services was confirmed on 23.11.1990 to the post of Pond Keeper. According to para 5 of the counter-affidavit, the charges against the petitioner were serious in nature, therefore, seeing the gravity of offences his services were terminated. According to para 6 of the counter-affidavit, the reply of the petitioner was considered to assess the conduct of the petitioner by his concerned officer.
8. According to para 11 of the counter-affidavit, the inquiry officer, the Upper Mukhya Adhikari has examined the witnesses and full opportunity of hearing have already been given to the petitioner. On the basis of inquiry report dated 23.2.1993 the service of the petitioner has been terminated.
9. On the other hand, it has been argued by learned standing counsel on behalf of the respondents that the petitioner was given sufficient opportunities and the relevant documents were furnished to him and there was no necessity to change the inquiry officer therefore, dismissal has been correctly made. Learned standing counsel on behalf of the respondents contended that there was no specific pleading pointing out which particular relevant document was not supplied to the petitioner due to which he was prejudiced. It was also submitted in reference to (a) Chandrama Tewari v. Union of India, AIR 1988 SC 117 : (b) State of Tamil Nadu v. Thiru. K. V. Perumal and Ors., AIR 1996 SC 2474 and (c) Secretary to Government and Ors. v. A.C.J. Britto, AIR 1997 SC 1393, where Supreme Court found that it was not necessary to supply every document asked for rather the obligation was only to supply material and relevant documents only, thus, the inquiry proceedings had not vitiated for non-supply of irrelevant documents.
10. The relevant part of Article 311(2) of the Constitution of India read as follows :
"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges :
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed ...................."
11. In Ghanshyam Das Shrivastava v. State of Madhya Pradesh, AIR 1973 SC 1183, when the delinquent Forest Ranger failed to attend the departmental enquiry due to paucity of funds resulting from non-payment of subsistence allowance the 5 Judges Constitution Bench quashed the order of the Government dismissing him from service though giving liberty to the Government to start a fresh enquiry in accordance with law against him, observing as follows :
"5. ............ As he did not receive subsistence allowance till March 20. 1965, he could not, in our opinion, attend the enquiry. The first payment of subsistence allowance was made to him on March 20, 1965, after a part of the evidence had already been recorded on February 9, 10 and 11, 1965. The enquiry proceedings during those days are vitiated accordingly. The report of the inquiry officer based on that evidence is infected with the same defect. Accordingly, the order of the Government dismissing him from service cannot stand. It was passed in violation of the provisions of Article 311(2) of the Constitution for appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings."
12. In State of Maharashtra v. Chandrabhan Tale, (1983) 3 SCC 387, the Supreme Court has held the second proviso to Rule 151 (1) (ii) (b) as unreasonable and void being violative of Article 311(2) of the Constitution of India providing payment of allowance of only Re. 1 per month to a suspended Government servant holding that normal subsistence allowance must be paid during the pendency of the trial of the criminal proceedings, appeal and even appeal before the Supreme Court, which is evident from paragraph 23 of the judgment which reads as follows :
"Any departmental enquiry made without payment of subsistence allowance contrary to the provision for its payment, is violative of Article 311(2) of the Constitution as has been held by this Court in the above decision. Similarly, any criminal trial of a civil servant under suspension without payment of the normal subsistence allowance payable to him under the rule would be violative of that article. Payment of subsistence allowance at the normal rate pending the appeal filed against the conviction of a civil servant under suspension is a step that makes the right of appeal fruitful and it is therefore, obligatory. Reduction of the normal subsistence allowance to the nominal sum of Re. 1 per month on conviction of a civil servant under suspension in a criminal case pending his appeal filed against the conviction, whether the civil servant is on bail or has been lodged in prison on conviction pending consideration of his appeal, is an action which stultifies the right of appeal and is consequently unfair and unconstitutional just as it would be impossible for a civil servant under suspension who has no other means of subsistence to defend himself effectively in the trial court without the normal subsistence allowance-there is nothing on record in these cases to show that the civil servants concerned in these cases have any other means of subsistence-it would be impossible for such civil servant suspended to prosecute his appeal against his conviction fruitfully without payment of the normal subsistence allowance pending his appeal. Therefore, Baban's contention in the writ petition that the subsistence allowance is required to support the civil servant and his family not only during the trial of the criminal case started against him but also during the pendency of the appeal filed in the High Court or this Court against his conviction is correct. If any provision in any rule framed under Article 309 of the Constitution is illusory or unreasonable, it is certainly open to the civil servant concerned to seek the aid of the Court for declaring that provision to be void. In these circumstances, I hold that the second proviso is unreasonable and void and that a civil servant under suspension is entitled to the normal subsistence allowance even after his conviction by the trial court pending consideration of his appeal filed against his conviction until the appeal is disposed of finally one way or the other, whether he is on bail or lodged in prison on conviction by the trial court."
13. In Fakirbhai Fulabhai Solanki v. Presiding Officer, AIR 1986 SC 1168, it was held as follows :
"Denial of payment of at least a small amount by way of subsistence allowance would amount to gross unfairness and violative of principles of natural justice." (Paragraphs 8 and 9)
14. In Captain M. Paul Anthony v. Bharat Gold Mines Ltd. and Ors., 1999 (2) AWC 1579 (SC) : (1999) 2 UPLBEC 1280 (SC) : AIR 1999 SC 1416 the Supreme Court had held as follows :
".,......... Suspension notwithstanding non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'subsistence allowance', so that the employee may sustain himself. This Court in O. P. Gupta v. Union of India and Ors., JT 1987 (3) SC 532, made the following observations with regard to subsistence allowance ;
"An order of suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India, is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance-generally called subsistence allowance-which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal' significance. The dictionary meaning of the word 'subsist' as given in Shorter Oxford English Dictionary. Vol. (II) at p. 2171 is "to remain alive as on food ; to continue to exist". "Subsistence" means-means of supporting life, especially a minimum livelihood."
If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of nonpayment of subsistence allowance, would gradually starve himself to death.
On joining Government service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Government. The Government, only because it has the power to appoint, does not become the master of the body and soul of the employee. The Government by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of the State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service.
His association with the Government or any other employer, like Instrumentalities of the Government or Statutory or Autonomous Corporations etc., is regulated by the terms of contract of service or service rules made by the Central or the State Government. Under the proviso to Article 309 of the Constitution or other Statutory Rules including Certified Standing Orders, The fundamental rights. Including the right to life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of subsistence allowance made in the Service Rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra v. Chanderbhan, 1983 (3) SCR 337 : 1983 (3) SCC 387 : AIR 1983 SC 803, struck down a Service Rule which provided for payment of a nominal amount of rupee one as subsistence allowance to an employee placed under suspension. This decision was followed in Fakirbhai Solanki v. Presiding Officer and Anr., JT 1986 SC 394, and it was held In that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of subsistence allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose reliance was also placed on an earlier decision in Ghanshyam Das Srivastava v. State of Madhya Pradesh, (1973) 1 SCC 656 : AIR 1973 SC 1183.
Since in the instant case the appellant was not provided any subsistence allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting an ex parte proceedings against him. We are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was liberally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by nonpayment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the inquiry officer at such proceedings, which were held ex parte, stand vitiated."
In view of the discussions aforesaid, we hold that due to non-payment of subsistence allowance, the inquiry the punishment of dismissal of the petitioner and dismissal of his appeal, all are void and liable to be quashed by this Court by grant of a writ of certiorari.
15. The petitioner has placed reliance on the decision in Jagdamba Prasad Shukla v. State of U. P. and Ors., 2000 (4) AWC 2982 (SC) : (2000) 7 SCC 90 para 8 :
"Where the Supreme Court has held that the payment of subsistence allowance. In accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of the subsistence allowance all through the period of suspension i.e.. from suspension till removal- One of the reasons for not appearing in inquiry as intimated to the authorities was the financial crunch on account of nonpayment of subsistence allowance and the other was the illness of the appellant. The appellant in reply to the show cause notice stated that even if he was to appear in inquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus, the departmental enquiry and the consequent order of removal from service are quashed.
16. The petitioner also placed reliance on the judgments of this High Court K. P. Giri v. State of U. P. and Ors., 2001 (1) UPLBEC 908 paras 7 and 8 as well as on Bajrang Prasad Srivastava v. u. P. Pariyojana Prabandha U. P. State Bridge Corporation Ltd. and Ors.. (2002) UPLBEC 1321. It was held in the case of K. P. Giri (supra) :
"Even in the absence of any reply submitted by the petitioner to the charge-sheet, it was incumbent upon the enquiry officer to fix the date in the enquiry and to intimate the petitioner about the same which has not been done in the present case. Moreover, from a perusal of the order of dismissal dated 20.3.1998, it will be seen that the management had produced the evidence in support of the charges levelled against the petitioner which had been accepted by the enquiry officer without making any effort to confront the same to the petitioner. Thus, the entire proceedings have been conducted in gross violation of equity, fair play and is in breach of the principles of natural justice."
17. In respect of change of inquiry officer the petitioner has further placed reliance on Registrar of Co-operative Societies, Madras and Anr. v. F. X. Farnando, 1994 (2) SCC 746 page 12, where it was held that Justice must not only be done but must be seen to be done, therefore the Supreme Court has directed that an another enquiry officer be appointed in order to remove any apprehension of bias on the part of the respondent. In (Smt.) Indrani Bai v. Union of India and Ors., 1994 Supp (2) SC 256 para 5. The Supreme Court has held that :
"It is seen that right through, the delinquent officer had entertained a doubt about the impartiality of the enquiry to be conducted by the enquiry officer. When he made a representation at the earliest, requesting to change the enquiry officer, the authorities should have acceded to the request and appointed another enquiry officer, other than the one whose objectivity was doubted."
18. The petitioner has placed reliance on Subhash Chand Sharma v.
M. D., U. P. Co-Op. Spg. Mills Fed.
Ltd.. 1999 (4) AWC 3227 para 5. In this judgment of this Court, it was held that :
"In our opinion, after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry, then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case, it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet, he was given a show cause notice and thereafter the dismissal order was passed. In our opinion, this was not the correct legal procedure and there was violation of the rules of natural Justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion, the impugned order is clearly violative of natural justice.
19. In Meenglas Tea Estate v. Workmen. AIR 1963 SC 1719, the Supreme Court observed :
"It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and the requirement must be substantially fulfilled before the result of the enquiry can be accepted."
20. In S. C. Girotra v. United Commercial Bank, 1995 Supp (3) SCC 212, the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination. In Punjab National Bank AlPNBE Federation, AIR 1960 SC 160 (vide para 66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd. u. Their Worksmen, 1963 (II) LLJ 396 and Tata Oil Mills Co. Ltd. v. Their Workmen. 1963 (II) LLJ 78 (SC).
21. In view of the judgment of this Court Radhey Shyam Pandey v. Chief Secretary, State of Uttar Pradesh. Lucknow and Ors., 2001 (3) AWC 2043 : (2001) 2 UPLBEC 1976, the order the dismissal of writ petitioner was held not justifiable by this Court (DB) :
"The respondents have not conducted the inquiry according to the proper procedure prescribed under Rule 99. No specific date, time and place of inquiry was fixed for documentary evidence against the petitioner which should have been adduced in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. A dismissal order is a major punishment having serious consequences and hence should be passed only after complying with the rules of natural justice. Since in the present case no regular and proper inquiry was held nor was subsistence allowance paid, hence in these circumstances, it is clear case that the petitioner had not been afforded a fair opportunity much less a reasonable opportunity to defend himself that has resulted in violation of principle of natural justice and fair play. The ex parte inquiry is illegal and the order of dismissal dated 27.3.2001 is quashed."
22. Now the question arises whether the petitioner after the dismissal/removal has been set aside, has been allowed to reinstate in service and what should be the amount of back wages is to be paid to him. Withdrawal of resignation of the appellant was considered and appellant was entitled to remain in continuity in service was not allowed any back wages if the employee did not actually worked.
23. In Surendra Kumar Verma and Ors. v. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Anr., (1980) 4 SCC 443, the Supreme Court has held that reinstatement with full back wages is common principle, however, the Court has power to mould the relief in exceptional case. In para 6 of Surendra Kumar Verma (supra) it was held :
"Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums ; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively for greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."
24. In A. L. Kalra v. Project and Equipment Corporation of India Limited, AIR 1984 SC 1361, it was held that when the delinquent highly placed officer in public sector though not guilty of misconduct found to have committed lapses in not returning House Building Advance and Vehicle Purchase Advance was reinstated after dismissal from service then having regard to all the aspect of the case, the appellant was paid 50% of the back wages for the period since his removal from service up to his reinstatement excluding the period for which he had procured an alternative employment.
25. In Dipti Pradash Banerjee v. Satyendra Nath Base National Centre for Basic Sciences, Calcutta and others, 1999 (2) AWC 1184 (SC) : (1999) 3 SCC 60, it was held that the employee was entitled to back wages when the termination of probationer was set aside and in the facts and circumstance of the case the reinstatement was allowed with back wages and continuity in service.
26. In State Bank of India and Ors. v. T. J. Paid, (1999) 4 SCC 759, when the respondent, employee, in doing act prejudicial to the interests of the bank, or gross negligence involving or likely to involve the bank in serious loss even if the actual loss was not necessary to attract this clause ahead enough to hold such employee, respondent, guilty when such Bank 'Officer charge to have sanctioned loans without adequate security and without prior approval/ratification from superior authorities. This was contrary to the departmental instructions but in the departmental proceedings the penalty of removal imposed on respondent employee was found ultra vires and case remitted to the appellant for fresh consideration of penalty in accordance with rules then the order of High Court directing payment of back wages, promotions, increments, etc. was allowed to sustain.
27. In Hardwari Lal v. State of U. P. and Ors., 1999 (8) SCC 582, wherein the appellant, a police constable, charged of having abused his colleague while he (appellant) was under the influence of liquor and neither complainant nor the other employee who accompanied the appellant to hospital for medical examination, examined as witnesses, inquiry was held to be vitiated being in violation of principle of natural justice and plea rejected that there was other material sufficient to come to conclusion one way or the other on the failure to the respondents to examine material witnesses. The finding of departmental enquiry was set aside and the appellant was reinstated, however considering that long time had elapsed between dismissal and reinstatement for which no blame could be made on respondent, 50% of back wages was allowed.
28. In Prabhudayal Birari v. M. P. Rajya Nagrik Aapurti Nigam Ltd., 2000 (4) AWC 2951 (SC) : (2000) 7 SCC 502, the Supreme Court observed that termination being in contravention of the specific conditions mentioned in the appointment order, the appellant was reinstated in service with back wages.
29. In Municipal Corporation of Delhi (M.C.D.) v. Prem Chand Gupta and Anr., (2000) 10 SCC 115, the Supreme Court has held that where termination of respondent's services declared Invalid being violative of Section 25(F) of the Industrial Disputes Act, 1947 and keeping in view that the case dragged on for 33 years but neither of the contesting parties were at fault. The delay was due to pendency of the case in Courts and the employer was a Municipal Corporation whose funds were primarily meant for public benefit. In the facts and circumstances of the case, only 50% back wages was allowed with all other consequential benefits.
30. In Vinod Bhanti v. State of Bihar and Ors., (2000) 10 SCC 146, the Supreme Court has held that the appellant, a confirmed employee of Artificial Limb Centre, absented from duty, submitted his resignation but before acceptance of the resignation letter, he withdrew the same. It was held after that having withdrawn the resignation the appellant could not be deemed to have been relieved from service. The Centre remaining nonfunctional for said period and the appellant was allowed to resume work at later stage when centre became non-functional. It was found that the appellant was not in service, therefore, he would be deemed to have been relieved from service. He was entitled to continue in service after the resignation having been withdrawn but he was not entitled for back wages for the period the appellant did not actually worked.
31. In Ex Constable Chhote Lal v. Union of India and Ors., (2000) 10 SCC 196, the Supreme Court has held that such an opinion of departmental authority that it was not reasonably practical to hold inquiry, was not justified and argument advanced by the respondents that the appellant being a police constable could have influenced witnesses and therefore, dispensing of inquiry was done, such argument rejected. Dispensing of inquiry was not found according to law, therefore, the liberty was given to respondents to proceed against appellant by holding inquiry. It was observed while setting aside the order of dismissal that in view of the nature of the charges against the appellant.
32. In Director of Collegiate Education and Anr. v. Sri Jagadguru Panchacharya Vishwa Dharma Vidya Peetha and Ors., (2000) 10 SCC 200, where the direction of the High Court to the Government to pay the back wages and other monetary benefits to respondent No. 3 was set aside as the question of liability of Government to pay the back wages and other benefits was not in issue either before the Tribunal or before the High Court and, therefore, the High Court was justified to pass such a direction.
33. In Assistant General Manager, S.B.I, v. Thomas Jone and Anr., (2000) 10 SCC 280. In that case bank employee was dismissed from service on account of his admitting of misconduct of withdrawing money unauthorisedly from customer's account. The Industrial Tribunal has power to modify punishment of discharged/dismissal imposed by employer. The Industrial Tribunal ordered reinstatement without back wages and the writ petition filed by the bank against the award of the Tribunal was dismissed by High Court relying upon Scooters India Ltd. v. Labour Court, 1989 (1) SCC 31 . It was held that the bank employee deals with public money and therefore, cannot be treated leniently as has been done by the Tribunal in the case in question and the award of the Tribunal, therefore, modified by inserting an additional condition that the employee would not get any increment for ten years with cumulative effect. However, the reinstatement of the appellant was allowed with back wages without any increment for period of ten years.
34. I have heard learned counsel for the petitioner and have perused the contents of the writ petition, I find that the major punishment have been given to the petitioner for which the proper procedure as prescribed under Rules 36 and 37 had not been observed. The enquiry has not been made in consonance to the normal procedure. Therefore, the enquiry report and its findings as well as the decision of dismissal by order dated 16/18.3.1993 is set aside and the petitioner is directed to be reinstated with consequential benefit. However, since 18.3.1993 the petitioner had not rendered any service, therefore, only 50%, of back wages shall be paid to him.
With these above observations the writ petition is allowed.