As both the above writ petitions have been filed by the same petitioner arising out of same proceedings, therefore, they have been connected and heard together.
1. Writ Petition No. 650(SS) of 2014 Heard learned counsel for the parties.
The petitioner herein who is an erstwhile Bus Conductor of the U.P. Roadways Transport Corporation has challenged the order of his removal from services as also the appellate order rejecting his appeal.
The facts of the case in brief are that the petitioner was removed from services vide order dated 19.12.1985 on the allegation, inter alia, of allowing ticketless passengers to travel after realizing the fare from them which was not deposited by him with the Corporation. An Industrial Dispute was raised by him. During pendency of the same, a judgment was passed in the case of Bhopal Singh's case on 10.09.1986 wherein it was held that the Assistant Regional Manager did not have the authority to pass such a punishment order whereupon, though the Industrial Dispute was pending consideration before the Tribunal the petitioner filed a writ petition bearing No. 8103(SS) of 1986 challenging the order of his removal from service. The said writ petition was allowed in terms of the judgment passed in Bhopal Singh's case (supra), on 06.02.1987 and the removal order was quashed. The petitioner is said to have been reinstated on service on 21.04.2007.
The State Legislative promulgated a validating Act namely U.P. Transport Corporation Employee (other than Officers) (Appointing Authority) Act, 1987 giving it retrospective effect from 19.06.1998 to validate such orders passed by the Assistant Regional Manager removing the basis of the judgment in Bhopal Singh's case (supra), consequently, the order of the petitioner's removal from service stood revived by another order dated 16.12.1987. Consequently, the industrial dispute also got revived, wherein, the Industrial Tribunal passed an award against the petitioner on 17.10.1990 thereby upholding his removal from service. This was put to challenge by means of Writ Petition No. 915(SS) of 1991. The said writ petition was allowed on 05.12.2003 and the matter was remanded back to the Tribunal for consideration afresh as to whether the domestic inquiry was properly held and the petitioner was granted reasonable opportunity to defend himself or not. The Industrial Tribunal again passed an award against the petitioner on 10.04.2006 upholding the proceedings for his removal from service which was again put to challenge by the petitioner by means of Writ Petition No. 6392(SS) of 2006 which was allowed on 12.03.2007, however, with the observations that the Court did not find any error up to the stage of inquiry and that the inquiry had been conducted properly, however, considering certain Circulars of the year 1979 and 1985 it opined that the Disciplinary Authority should have been different from the Inquiry Officer. Consequently, it quashed the award and consequential orders with liberty to the competent authority to pass fresh orders after issuing show cause notice on the point of proposed punishment with the observation that the Disciplinary Authority before passing the final order shall provide opportunity of hearing to the petitioner on the proposed punishment. Against the said judgment a Special Leave Petition bearing No. 17151 of 2007 was preferred by the Corporation which was dismissed on 11.04.2011, however, with the observation that the question of law is kept open to be decided in appropriate case.
On 24.08.2011 a show cause notice was issued to the petitioner to the proposed punishment of removal with forfeiture of remaining salary for the period of suspension. After considering the petitioner's reply the order of his removal from service was passed on 19.10.2011 against which the petitioner filed an appeal which was dismissed on 13.01.2014. It is against the aforesaid background that the present writ petition has been filed challenging the aforesaid orders.
Shri Amit Bose, learned counsel appearing for the petitioner addressed the Court only on two issues:-
(i) That a copy of the inquiry report was not provided to the petitioner as was required to be done by the judgment of this Court dated 12.03.2007 passed in the earlier writ petition filed by the petitioner bearing No. 6392(SS) of 2006, thereby, vitiating the impugned orders.
(ii) The inquiry proceedings were in violation of the Circular dated 07.04.1979.
As far as the second contention is concerned, in the earlier proceeding before this Court which culminated in the judgment dated 12.03.2007 a categorical finding was recorded that there was no illegality in the inquiry which had been conducted properly, therefore, now it is not open for the petitioner herein to raise any issue relating to any irregularity or illegality in the inquiry proceeding as it is barred by the Principle of res-judicata/ constructive res-judicata.
As far as the first contention is concerned, on a perusal of the judgment dated 12.03.2007, the Court finds that there was no direction therein for furnishing the inquiry report to the petitioner before passing of a fresh order by the Disciplinary Authority. The only direction was to issue a show cause notice proposing punishment and fresh order to be passed by the Disciplinary Authority other than Inquiry Officer. On a perusal of both the impugned orders no infirmity is found in this regard. It is not out of place to mention that the disciplinary proceedings against the petitioner were initiated prior to 19.12.1985 and he was removed from service on 19.12.1985. It is those very proceedings which have now been finalized by the impugned orders after the litigation which took place in the interregnum, as already referred in the earlier part of the judgment. The legal requirement of furnishing the inquiry report to the delinquent came into existence for the first time by the judgment of the Supreme Court in the Case of Union of India Vs. Mohd. Ramzan Khan reported in 1991 (1) SCC 588. The said requirement was made effective prospectively from the date of the said decision i.e. 20.11.1990. While laying down the said law the Supreme Court in Mohd. Ramzan Khan's case (supra) categorically held that the law laid down therein was not applicable to the orders of punishment passed before that date notwithstanding the fact that the proceedings arising out of the same were pending in Courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply a copy of the Inquiry officer's report to the employee. The only exception to this was where the service rules with regard to the disciplinary proceeding themselves made it obligatory to supply a copy of the report to the employee.
A perusal of the reply to the show cause notice filed by the petitioner after the judgment dated 12.03.2007 does not contain any such objection regarding non furnishing of the inquiry report.
Shri Amit Bose, learned counsel for the petitioner was not able to place before the Court any rule under which the petitioner was entitled to be supplied a copy of the inquiry report in respect of the proceeding relating to him.
The law laid down in Mohd. Ramzan Khan's case (supra) again came up for consideration by a Constitution Bench of the Supreme Court in the case of Managing Director, ECIL, Hyderabad and Others Vs. B. Karunakar and Others reported in 1993 (4) SCC 727 wherein their Lordships held that notwithstanding the decision of the various High Courts and Tribunals on the same lines as by the Supreme Court in Mohd. Ramzan Khan's case (supra) the law on the issue of supplying of inquiry report was in an unsettled condition till at least 20.11.1990 on which day Mohd. Ramzan Khan's case was decided. Since the said decision made the law expressly prospective in operation the law laid down there will apply only to those orders of punishment which are passed by the Disciplinary Authority after 20.11.1990 i.e. requirement of supplying the inquiry report to the delinquent employee will not be enforceable before the said date. This was so, notwithstanding the ultimate relief which was granted in Mohd. Ramzan Khan's case (supra) which according to the Constitution Bench was per incurium. The Constitution Bench categorically held that no order of punishment passed before that date would be challengable on the ground that there was a failure to furnish the inquiry report to the delinquent employee. The proceedings pending in Courts/ Tribunals in respect of orders of punishment passed prior to November 20, 1990 will have to be decided according to the law that prevailed prior to the said date and not according to law laid down in Mohd. Ramzan Khan's case (supra). This was so notwithstanding the view taken by the different Benches of the Central Administrative Tribunal or by the High Courts or by the Supreme Court in R.K. Vashists's case. Reference may be made in this regard to paragraph no. 43, 44 and 75 of the said judgment.
For the reasons aforesaid, the arguments advanced by Shri Amit Bose, learned for the petitioner have no force in the eyes of law. As no other ground was pressed during the course of the arguments, therefore, the Court does not find any error in the impugned orders.
The Writ Petition No. 650(SS) of 2014 is, accordingly, dismissed. There shall be no orders as to costs.
2. WRIT PETITION NO. 1887(SS) OF 2012 The writ petition bearing No. 1887(SS) of 2012 has also been filed by the petitioner arising out of the same proceeding as has been discussed herein above, however, the challenge herein is to an order dated 06.08.2011 whereby while reinstating the petitioner in service consequent to the judgment of this Court dated 12.03.2007 passed in the earlier writ petition filed by the petitioner bearing No. 6392(SS) of 2006 his suspension as ordered on 29.03.1985 was continued with the condition that during suspension he would be paid subsistence allowance on the same rate as he was being paid prior to his removal from service in the year 1985.
Contention of the learned counsel for the petitioner is that once the removal order was quashed then the petitioner is to be deemed in service even though under suspension, but, is entitled to subsistence allowance of a higher rate which is required to be refixed based on the salary payable to him as enhanced from time to time.
The Court finds merit in this contention of the petitioner, as, once the removal order had been set-aside then he is deemed to be in service even though under suspension, therefore, any enhancement in the salary/ pay-scale of the post which he was holding would entail a consequential enhancement in the subsistence allowance payable at the rate/ percentage mentioned in the rules, therefore, this aspect of the matter requires reconsideration by the respondents who are, accordingly, directed to reconsider the same in the light of the observations made herein above and take a fresh decision in this regard within a period of two months from the date a certified copy of this order is submitted.
The revised/ enhanced subsistence allowance for the period in question shall be paid to the petitioner within the aforesaid period.
This writ petition No. 1887(SS) of 2012 is disposed of in the aforesaid terms. There shall be no orders as costs.