terlocutory Application No 1 of 1990
IN Civil Appeal No 4444 of 1991
From the Judgment and Order dated 2551991 of the Allahabad High Court in CWP No 5267 of 1990
DK Garg and Pradip Misra for the Appellants
The Judgment of the Court was delivered by RANGANATH MISRA J
Leave is granted to the petitioners who were not parties before the High Court in Writ Petition No 5267 of 1990 to file the special leave petition
The Registry shall
therefore
consequently register this spe cial leave petition
Special leave is granted
On 2551990
a learned Single Judge of the Allahabad High Court is said to have made an order in Writ Petition No 5267 of 1990
That brief order for convenience is ex tracted below has been brought to the notice of the Court that the opp
parties have violated the time schedule framed by Hon ble Supreme Court in the case of Dr Dinesh Kumar vs 132 MLN Medical College Allahabad  in organising the competition to be held on 27590 by Lucknow University for admissions in Post Graduate Medical Courses in the State Medical Colleges
The Hon ble Supreme Court has recently warned in the case of State of Bihar vs Dr Sanjay Kumar Sinha AIR 1990 SC 749 that Everyone including the States
the Union territories and other authorities running Medical colleges with Post Graduate Courses are bound by our order and must strictly follow the same schedule
For violating its orders the Hon ble Supreme Court hoped that there would be no recurrence of it but we would like to administer a warning to everyone that if it is brought to our notice at any time in future that there has been viola tion a serious view of such default shall be taken
Keeping in view the above observations the opposite parties are strictly directed not to hold the competitive examina tion scheduled on 27th May 1990 and admit the petitioners in Post Graduate Medical Courses in the present session on the basis of marks obtained in MBBS Course as has been done for MDS Courses
The Writ Petition is allowed with no order as to costs On the basis of that order and relying upon the terms thereof a learned Single Judge of the Lucknow Bench of the High Court made an order on 4690 directing that steps be taken on the basis of the direction direction made in the order dated 25590 for giving admission to candidates in PG Courses
The net result of these two orders is that the Selection Examination for filling up of the seats in the Post Graduate Medical Courses of the seven medical colleges in UP has been cancelled and a direction has been issued to the State Government to grant admission on the basis of MBBS results
This Court by order dated 21st August 1990 directed the Registrar of the Allahabad High Court to transmit the record wherein order dated 25590 is said to have been made
The Registrar in his letter dated 22nd August 1990 to this Court in response to the direction has stated that there is no such case as writ No 5267 of 1990 Dr B Sheetal Nandwani vs State and Others and no judgment 133 was delivered by Hon ble Mr Justice Anshuman Singh on 25590 in the said case
The file is sent to you through special messenger and you are requested to kindly return the file after the Hon ble Court s perusal
It is further submitted that fake judgment was said to have been produced before different Medical Colleges purporting to have been delivered by Hon ble Mr justice Anshuman Singh J on 2551990 in Writ Petition No 5267 of 1990 directing the opposite parties not to hold competitive examinations scheduled on 27590 and admit the petitioners in Post Graduate Medical Course in the present session on the basis of the marks obtained in MBBS Course
In Northern India Patrika  Allahabad Edition dated 11890 this matter was published with the heading Bogus Judgment aborts entrance Exam  and only then it came to the notice of the Hon ble Court and the Hon ble the Chief Justice took up the matter and directed that a CID enquiry be instituted
On the direction of Hon ble the Chief Justice the Government has been moved to get the matter investigated by CID
 From the report it is manifest that a fake order in a non existent writ petition was produced before the Lucknow Bench of the Allahabad High Court for securing the order dated 4690
It also transpires that on the basis of al leged order dated 25590 and the subsequent order of 4690 some admissions have been secured in some of the medical colleges
Those who have taken admission on the basis of such orders
that is on the basis of the MBBS result without going through a selection examination cannot be allowed to continue in the Post Graduate Courses
We are satisfied that there is a deep seated conspiracy which brought about the fake order from Allahabad
the principal seat of the High Court and on the basis thereof a subsequent direction has been obtained from the Lucknow Bench of the same High Court
The first order being non existent has to be declared to be a bogus one
The second order made on the basis of the first order has to be set aside as having been made on the basis of misrepresentation
We are alive to the situation that the persons who have taken admission on the basis of the MBBS results are not before us
The circum stances in which such benefit has been taken by the candi dates concerned do not justify attraction of the application of rules of natural justice of being provided an opportunity to be heard
At and rate now that we have at the instance of the UP Government ordered 134 the selection examination to be held admission on the basis of MBBS results cannot stand
We accordingly direct that admissions if any on the basis of MBBS results granted after the impugned orders of the High Court shall stand vacated and the Principals of the medical colleges of UP are directed to implement the direction forthwith
A copy of this order shall be communicated to each of the Principals of the seven medical colleges in the State of UP for compliance
The report of the Registrar of the High Court of Allaha bad indicates that the Criminal Investigation Department of the State has been asked to investigate into the matter
We are of the view that appropriate investigation should be done by the Central Bureau of Investigation and persons behind this deep seated fraud should be brought to book without any delay
Purity of the judicial stream should not be allowed to be polluted by such a clandestine move and citizens should not be misled by actions of the conspira tors
We therefore direct that the Central Bureau of Investigation shall step in forthwith and complete the investigation within two months and provide a copy of the report containing the result of the investigation to this Court
A copy of the report shall simultaneously be submit ted to the learned Chief Justice of the Allahabad High Court
The appeal is allowed with costs
As and when the respondents who are said to be petitioners in writ petition No 5267 of 1990 are identified shall be made to pay the costs of this appeal which we assess at Rs10000
Out of the costs as and when recovered the appellants shall be entitled to a sum of Rs3000 and the remaining sum of Rs7000 shall be paid to the Supreme Court Legal Aid Com mittee
TNA Appeal allowed


Summary:
The appellant Bank instituted a departmental inquiry against one of its employees a clerk in one of its branch es
The departmental inquiry was held for four acts of misconduct and the inquiry officer came to the conclusion that two of the charges were fully proved while one charge was proved to a limited extent and the fourth charge was not established
On the basis of the report of the inquiry officer the competent authority decided to dismiss the employee from service and issued a notice to him under paragraph 52110a of the Award of the All India Industri al Tribunal popularly known as the Shastri Award requiring him to show cause as to why the said punishment should not be imposed on him
He was also given a hearing as required by the said provision and thereafter an order was passed to the effect that the established charges viz uttering indecent words threatening the agent and failure to do the work allotted are quite serious and would warrant dismissal though he may not be dismissed in view of the extenuating circumstances but that at the same time it would not be desirable to retain him in the Bank s service and that as such he be discharged on payment of one month s pay and allowances in lieu of notice
In terms of para 52110c of the Shastri Award this would not amount to disciplinary action An industrial dispute was raised by the first respond ent Uuion and it was referred to the Central Government Labour Court for adjudication and by its award the Labour Court upheld the order of dismissal
12 The first respondent Union preferred a writ petition to the High Court and raised several contentions but the High Court confined its decision only to one point viz whether the termination of the service was retrenchment and whether it was made in accordance with the provisions of Section 25F of the  held that the termina tion of the service of the second respondent was retrench ment within the meaning of section 200 and was made in breach of the statutory provision contained in Section 25F in as much as no retrenchment compensation was paid to the employee and set aside the order of termination of serv ice
In the appeal by the Bank to this Court the question for consideration was whether the order of termination of service served on the employee amounts to punishment or not
Allowing the appeal this Court HELD 1
It is not possible to sustain the view taken by the High Court since it proceeds on too literal an interpre tation of the provisions of paragraphs 5215e and 52110c of the Award and ignoring their context
17B 2
The termination of service of the employee in the instant case under paragraph 52110c of the Award is as a result of the disciplinary proceedings and is punitive
It is therefore not retrenchment within the meaning of Section 200 of the 
Hence there was no question of complying with the provisions of Section 25F of the Act
The decision of the High Court has therefore to be set aside
25G H 26A 3
It is clear from the context in which sub clause e of sub para 5 occurs that the entire expression namely have his misconduct condoned and he merely discharged has nothing but penal implications and the measure mentioned therein is a sequal to the disciplinary action taken for one of the gross misconducts mentioned in sub para 4
It is not possible to arrive at any other conclusion on a reading of the sub paragraph as a whole
The discharge spoken of there is nothing but a punishment for a gross misconduct
This is so not only because it is enumerated as one of the punishments along with others but also because firstly there is a provision of simple discharge elsewhere in paragraph 522 of the Award
and when the Award intended to provide for it it has done so in sub paras 2c 2d and 3
20G H 21A B 13 4
Sub paras 9 and 10 of paragraph 521 lay down the procedure for taking disciplinary action as well as for awarding punishment following such action
Sub paras 9 10a 10b would indicate that discharge under sub paras 2c 3 5 and 10c is also a punishment for when the employee is discharged under the said provisions after the inquiry under the provisions of sub paras 9 and 10 there is no provision made for treating either the whole or part of the period of suspension during the inquiry as on duty
21D  G H 5
In view of the fact that sub clause a requires that a hearing should be given to the employee against the pro posed punishment the authority is enjoined under sub clause c to take into account the gravity of the mis conduct the previous record of the employee and any other aggravating or extenuating circumstances that may exist and may be brought on record while awarding punishment by way of disciplinary action
The sub clause then provides for discharge with or without notice or on payment of a month s pay and allow ances in lieu of notice
The punishment of discharge is to be awarded in two circumstances
The first circumstance is when there are sufficiently extenuating circumstances but the mis conduct is of a gross type
The second circum stance is when the charge is such that the Bank does not for some reason or other think it expedient to retain the em ployee any longer in service but the evidence is insuffi cient to prove the charge
22D E 6
Read with sub para 5e the provisions of sub clause c of sub para 10 become more clear that if a mis conduct is not of a gross type it may be merely condoned without any further action
But when it is of gross type the authority has no option but to condone and to proceed to discharge the employee
The expressions used both in sub para 5e and sub para 10c in that respect are identical
Similar is the action contemplated for the second circumstance referred to in sub para 10c namely when the charge though unsustainable for want of evidence is such that it is considered inexpedient to retain the employ ee in service
23D E 7
Since in the context such a discharge is by way of punishment the relevant provisions give a discretionary power to the authority to convert what would otherwise be a dismissal into a mere discharge
This is for the benefit of the employee
It protects him from the banefull consequences of dismissal
At the same time it relieves the management of the burden of retaining him in service when it has become inexpedient to do so
Thus the provision of such discharge works to the advantage of both
At the same time it cannot be gainsaid that the said 14 discharge is as a result of the disciplinary proceeding
Although in form it may not and in the peculiar circum stances it is intended that it should not look like a disciplinary action it cannot be denied that it flows from and is a result of the disciplinary proceedings
To make clear however that the action though spawned by the disciplinary proceedings should not prejudice the employee the last sentence viz Discharge in such cases shall not be deemed to amount to disciplinary action has been added by way of abundant precaution
23F H 24A 8
That this is not a discharge simpliciter or a simple termination of service becomes clear when it is compared both with the provisions of para 5221 and with those of sub paras 2c 2d and 3 of paragraph 521 itself
The distinction between discharge contemplated under para graph 52110c and discharge simpliciter or simple termi nation of employment under the other provisions is clear enough
This will also show that the two belong to different categories and are not the same
While the former is intend ed to be punitive the latter is not
As is further clear from the provisions of paragraphs 5212c 2d and 3 the discharge contemplated there as against simple termina tion is in proceedings under sub paragraphs 9 and 10 infra relating to discharge
In other words it is as a result of a disciplinary proceeding
24B 25C D 9
To construe the discharge under paragraphs 5215e and 52110c as a simple discharge not flowing from disci plinary proceedings will deprive an employee of a valuable advantage viz that of challenging the legality and propri ety of the disciplinary action taken against him whatever the form of the order by showing that he was either not guilty of any misconduct or that the misconduct was not of a gross type or that the punishment meted out to him by way of discharge was not warranted in the circumstances etc
It is not therefore in the interests of the employees to construe the provisions as the High Court has done
The predominant object of the Award is to protect the interests of the employees
25E F 10
Remanding the matter to the High Court for deciding the other contentions raised in the writ petition is not advisable for various reasons
The misconducts complained of against the employee are of 1966
He was charge sheeted in January 1968 and removed from service on April 9 1970
The Court proceedings have been pending for more than about 23 years
In the meanwhile the respondent No 2 who was a clerk on the date he was charge sheeted has become a lawyer and has been practicing as such
Further the mis conducts which are held 15 proved by the Labour Court are of gross type within the meaning of paragraph 5214 of the Award
The Labour Court is the final fact finding forum
The High Court while setting aside the order of the Labour Court has granted reinstatement in service and back wages and pursuant to the said order the employee has already received an amount of Rs93000
The effect of decision would be to set aside not only the order of reinstatement but also of the back wages which would require the employee to refund the said amount
Even though the employee was prepared to refund the amount and to contest the petition on other grounds at present the employee is in his fifties
Taking into consideration all these facts the interests of justice would be served if the order of the High Court is set aside and the order of the Labour Court is restored without requiring the employee to refund the amount he has already received
26E G 27C E