1.0. Admit.
The following substantial question of law arises in the present Second Appeal.
"Whether in the facts and circumstances of the case when the learned trial Court found that the order of dismissal was in breach of principles of natural justice as the departmental inquiry was in violation of the principles of natural justice, as the Inquiry Officer acted in dual capacity, more particularly, as Presenting Officer as well as Inquiry Officer, whether the learned trial Court was justified in ordering reinstatement and whether considering the the decision of the Hon'ble Supreme Court reported in (2005) 8 SCC 276 as well as (2008) 12 SCC 30, instead of passing order of reinstatement, Court should have/ ought to have passed and order of denovo inquiry"?
2.0. Shri Paul, learned advocate waives service of notice of admission on behalf of respondent. With the consent of the learned advocates for the respective parties and there is broad consensus between the learned advocates for the respective parties to decide and dispose of the present Second Appeal and to remand the matter to the disciplinary authority for afresh inquiry, present Second Appeal is taken up for final hearing today.
3.0. Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants herein-original defendants -Union of India -Western Railway, Mumbai and others to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (S.D.), Rajkot passed in Regular Civil Suit No. 37 of 1999 dated 7.5.2010 as well as judgment and order passed by the learned Appellate Court -learned Additional District Judge, Rajkot dated 4.4.2011 in Regular Civil Appeal No. 54 of 2010, by which, learned Appellate Court has partly allowed and judgment and decree passed by the learned trial Court decreeing the suit and modified it to the extent of back-wages only.
4.0. Today, when the present Second Appeal is taken up for final hearing, there is broad consensus between the learned advocates for the respective parties under the instruction from the respective clients that let the judgment and decree passed by the learned trial Court and the Appellate Court as well as the order passed by the disciplinary authority removing the respondent from service be quashed and set aside and the matter be remanded to the disciplinary authority for afresh inquiry in accordance with law and on merits and after giving an opportunity to delinquent and that the disciplinary authority to conclude the inquiry at the earliest and preferably within the period of six months and in the meantime respondent to be reinstated in service at Rajkot and to pay regular salary due and payable as on today and the period between the date of removal(which is now set aside) and the reinstatement shall be regularized / adjudicated by the authority depending upon result of the disciplinary proceedings. It is agreed that if any minor punishment is imposed in that case, the aforesaid period to be regularized by the authority either treating the aforesaid period under suspension and consequently to order for suspension allowance or appropriate order be passed for the back wages for the intervening period and if any major punishment is imposed, his entitlement, if any, would be adjudicated by the authority depending upon such order and such order shall be passed at the time of final decision on conclusion of the inquiry, by the disciplinary authority. It is also agreed between the learned advocates for the respective parties that if any, major punishment is imposed on conclusion of departmental proceedings, the same shall not be implemented for a period of four weeks from the date of receipt of such order by the respondent, so as to enable him to challenge the same before the appropriate authority / forum, which be considered in accordance with law and on merits. Learned advocates for the respective parties do not invite any further reasoned order while quashing and setting aside the impugned judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court as well as order of removal passed by the disciplinary authority and remanding the matter to the disciplinary authority. Hence, this Court has not assigned any further reasoned order.
5.0. In view of the above, present Second Appeal is disposed of in terms of above broad consensus between the learned advocates for the respective parties recorded hereinabove and consequently impugned judgment and decree passed by the learned Civil Judge (S.D.), Rajkot passed in Regular Civil Suit No. 37 of 1999 dated 7.5.2010 as well as judgment and order passed by the learned Appellate Court -learned Additional District Judge, Rajkot dated 4.4.2011 in Regular Civil Appeal No. 54 of 2010 as well as order or removal dated 5.2.1997 are hereby quashed and set aside, without expressing anything on merits in favour of either parties and the matter is remanded to the disciplinary authority to conduct the departmental proceedings afresh in accordance with law and on merits after giving an opportunity to respondent. That as agreed between the learned advocates for the respective parties, the appellant to reinstate the respondent at Rajkot on his original post and to pay regular salary due and payable as on today i.e. within a period of one week from today without fail. As agreed between the learned advocates for the respective that if any, major punishment is imposed on conclusion of departmental proceedings, the same shall not be implemented for a period of four weeks from the date of receipt of such order by the respondent, so as to enable him to challenge the same before the appropriate authority / forum. It is also further observed and as agreed between the learned advocate for the respective parties in any minor punishment is imposed, in that case, the aforesaid period to be regularized by the authority either treating the aforesaid period under suspension and consequently to order for suspension allowance or appropriate order be passed for the back wages for the intervening period and if any major punishment is imposed, his entitlement, if any, would be adjudicated by the authority depending upon such order and such order shall be passed at the time of final decision on conclusion of the inquiry, by the disciplinary authority. With this, present Second Appeal is disposed of.
6.0. In view of the disposal of Second Appeal, no order in Civil Application and is accordingly disposed of.
( M. R. Shah, J. ) "kaushik"
Top