HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 1445 of 2001 R.S, Dwivedi -Versus- P. State Co-operative MaTketmg Federation Ltd. Bhopal & others ORDER for consideration. Sd/- SatishK.Ag Judge HON'BLE THE CHIEF JUSTICE Sd/- ChiefJustice Post for ordero? /O^ugust, 2005. Sd/- Satish K. Agaifaotri HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 1445 of 2001 R.S. Dwivedi -Versus- State Co-operative Marketing Federation Ltd. Bhopal & others Mr. Yashwant Tiwari, Advocate for fhe petitioner. Mr. Abhahek Suiha, Advocate for fhe Respondents No. 1 and 3. Dr. N. K. Shukla, Senior Advocate with Mr. Shailendra Shukla, Advocate for flie Respondent No.2. O R DER # (/OT"August.2005) Bv Justice Satish K. Agnihotn. r> The present petition filed under Ardcles 226 and 227 of the Constitution of India aiipugns fhe order dated 28.9.1999 passed by fhe Madhya Pradesh State Co-operative Tnbunal, Bhopal in S.A. No. 148/99 coDlirming ftie orders dated 31.8.1996 and 28.12.1998 passed by the Additional Registrar, Co-operati.ve Societies, Madhya Pradesh, Bhopal in Case No. 77-76/96. The present petition furfher unpugns fhe order dated 13.4.2001 passed by fhe Madhya Pradesh Co-operative Tribunal, Bhopal ia Review Case No. 45/99 whereby the petitioner was denied back wages aad ofher consequential benefits pursuant to i-einstateiaent in service. The undisputed facts in brief are that the petitioner was workiag as Marketing Ofi&cer in the services of fhe Respondent No. 1 at ofi&ce at Ainbikapur, when he was tei-ininated froia fhe service on 22.6. 1992, after a departaieutal enqiiuy was held ou five ardcles ofcharges to the effect that out of 40 go-downs, the petitiouer had wrongly aiLd ^l <* excessively assessed the capacity of 5 go-downs thereby causins fiiiaacial loss ofabout 31,000/- to the Respoadent No. 1. 3. The petitioner, beiag aggrieved, filed an application under Section 55(2) of the Madhya Pradesh Co-operative Societies, Act, 1960 (hereinafter 'the Act, 1960^ before the Deputy Registrar, Co-operative Societies, Bhopal which was registered as Case No. C-67/93 and vide ,order dated 7.5.1996 the Deputy Registrar, Co-operative Societies quashed fhe second show cause notice dated 11.3.1991, after enauiry report was subinitted, on the ground fhat the Adiiunistrative C&pinittee, which has decided to issue the second show cause notice o was not properly constituted and the said show cause notice did not indicate fhe proposed punishm.ent, aad as such, ttie show cause notice was held to be bad. Consequenfly, the teruunation order dated 22.6.1992 was quashed. On fhe question of validity of fhe departniental enquiry it was found that the departmental enquiry was properly held. The Deputy Registrar, accordingly, set-aside fhe tennination order dated 22.6.1992 aad directed reiastateineut of the ^t petitioner wifh full back wages aad atlowances. 4. Beiag aggrieved, fhe Respondent No. 1 ffled aa appeal before the Registrar, Cooperative Societies, Madhya Pradesh, beariag Case No. 77-76/96. The Additional Registrar, Cooperative Societies, Madhya Pradesh, Bhopal vide his judginent and order dated 31.8.1996 came to fhe couclusion fhat fhe order of termin.ation was set-aside by fhe Deputy Registrar on tecbllical ground aiid as siich the petitioner was not entifled to consequential benefits of back wages and atlowances, particularly ia view of the fact that it had been held proved that the petitioner had caused finaacial loss to the Marketing Federation. Ou fhe question of reuistateinent fhe oid.er passed by the Deputy Registrar was confiraied by fhe Additional Registrar, Cooperative Societies. 5. Iu conipUance ofthe order dated 31.8.1996 passed by the Additional Registrar, Cooperative Societies the petitioner was reinstated in. service on 10.9.1996. The petitioner thereafter rettred on superaiuiuationw.e.f. 30.11.1996. 6. Being aggrieved by the order ofthe Additional Registrar, Co-operative Societies, denying the consequential back wages and allowances, the petitioner filed a second appeal before the Board of Revenue, Madhya Pradesh, bearing Appeal No. 114/P.B.R./98. The Chau-man of fhe Boafel of Revenue, Madhya Pradesh, Camp at Bhopal, passed the order dated 24.9.1998, holdiag that fhe lirst appeUate Coiu't had not considered fhe ruliags cited by fhe petitioner and had not adopted a syiupafhetic approach before denying the benefit ofbackwages on the principles of 'no work no pay'. Accordiagly, the case was renianded back to fhe Additional Registrar, Cooperative Societies, Madhya Pradesh, Bhopal for decision afresh, after considering the ruluigs cited by fhe petitioner and bearing ia mmd fhe circum.stances fhat fhe petitioner had retired aad had beea iiviag frora. hand to inoufh. 7. That the Additional Registrar vide his order dated 28.12.1998 reiterated fhe findiags recorded in the earlier order dated 31.8.1996 and held that the order dated 31.8.1996 passed by the Additional Registrar, Co-operative Societies did not reqiure any ainendinent The earlier order dated 31.8.1996 was accordirigly inaintaiiied. 8. Feelmg aggrieved, fhe petitioner agaia ffled second appeal before fhe Madhya Pradesh Co-operative Tribunal, Bhopal against the order dated 28.12.1998 passed by fhe Additional Registrar, Co-operative Societies. Leamed Co-operative Tribunal vide order dated 28.9.1999 passed ta Second Appeal No. 184/99 has confirmed fh.e findings of ? fhe Additional Registrar and disnaissed the appeal accordingly, lioldiag as under:- C-_2> In ihe Ught of this prindple, atthough fhere is no evidence of the respondent on ths record that during fhe intervening period of dism.issa.1 and re-ins'ta'tement back of the appellant in seivices, he t ivas gainfiilly einployed else-where, fhe appellant is not entitled to back wages. For aTt these reasons this appeal does not deserve to be allowed. As a result of foregoing discussions, this appea] preferred by the appellani fcdls andis dismissed accordingly. 9. The petitioner filed a Review Petition before the M.P. Co-opei-ati.ve Tribunal under Section 77(A) of fhe Madhya Pradesh Co-operative Societies Act 1960 seeking revie^v of fhe order dated 28.9.1999. The review petition beiug Review Case No. 45/99, was disiaissed on 13.4.2001. 10. The petitioner prefen-ed this petition under Article 226/227 of the Constitution of India seeking quashiiig of fhe order dated 28.9.1999 m S.A. No. 184/99, onder dated 13.4.2001 ia Review Case No. 45/99 passed by the M.P. State Co-operative Tribunal, orders dated t 31.8.1996 aad 28,12.1998 passed by fhe Additional Registrar Co- operati.ve Societies ui Case No. 77-76/96. The petitioner further seeks direction of fhis Court agauist the Respondents No. 1 and 2 to pay fhe back wages from. 22.6.1992 to 13.9.1996 wifh ofh.er benefits of service with interest at the rate of 12% p.a. 11. Mr. Abhishek Siaha, leamed counsel appeariag for the Respondents No. 1 and 3 aad Dr. N. K. Shukla, leamed senior counsel appearuij for the Respondeat No.2 raised preluninary objections to fhe inamtam.abUity ofthis writ petition under Articles 226 and 227 ofthe Constitutiou of ludia. Leamed counsel for the respondeuts No. 1 and 3 subinitted fhat fhe present petition is not inaintainable under Ardcle 227 offhe Constitution oflndia i.e. power of superintendence .,1&—»^ »> \ and furfher under Article 226 of fhe Constitution of India in exercise of the power of fhe High Coiul to graat a writ of certiorari. Leamed coimsel submitted fhat for entertamiag fhis petition for issuance of a writ of cerdorari. or to exercise power of supervisoiy jurisdictiou, the requireinent is fhat the error must be inarufest and apparent on fhe face of the proceediD.gs, based on clear igaorance or disi^gard of the provisions of law, or great iajustice or gross faUure of injustice has occasioued fhereby. It was further conteuded by learued couiisel for the respondents No. 1 and 3 that fhe High Court in exercise of its extia ordinaiy jurisdiction to issue a writ of certiorari or in. its supervisory jurisdiction under Article 227, should not convert itself iato a Court of appeal and iadulge in re-appreciation or re-evaluation of the judgnient to correct fhe eiTor. Leamed couiisel further contended fhat fhe High Court whfle exercisiag its extra ordinary jurisdiction to issue a writ ofcerdorari inay aunul or set-aside fhe act, order or proceediags of fhe subordinate courts but caanot substitute its own decision ia its place thereof. To substantiate his argunient, leamed counsel cited decisions of fhe Supreine Court ia Hari Vishnu Kamath Vs. Ahmad Ishque 8& others A.I.R. 1955 S.C. 233, L. Chandra Kumar Vs. Union oflndia & ofhers A.I.R. 1997 S.C. 1125. M/s. Essen Deinki Vs. Rajiv Kmnar, A.I.R. 2003 S.C. 38, and Ranjeet Singh Vs. Ravi Prakash, A.I.R. 2004 S.C. 3892. Dr. N. K. Shukla, leamed senior counsel appearing for fhe Respondent No.2 subinitted fhat fhis Court has no jurisdiction to entertaiii this petition luider Ardcle 227 of fhe Constitution of India in supervisoiy jurisdiction again.st the impugned order passed by fhe Madhya Pradesh Co-operative Tribiuial, Bhopal, as the Tribim.al is located outside fhe territorial jurisdiction of this High Court. On fhe question of entertaiaiag fhis writ petition under Article 226 of fhe -V Constitution oflndia, learaed counsel for the Respondent No.2 has no subiaission as fhe cause ofaction had arisen in Ainbikapur wifhin fhe temtorial jurisdiction of fhis H^h Court. 13. Shri Yashwant Tiwari, leanied couiisel appearing for the petitioner submitted fhat this High Coiut has jurisdiction to entertaia fhis petition under Article 226 and 227 of fhe Constitution of India to issue a writ of certiorari ia exercise of its extra ordinaiy powers under Article 226 of the Constitution of India and further to entertaia this petition uuder Article 227 ofthe Coastitution ofludia iil exercise ofits powers of supenntendence over aU Courts by flie High Court, as the original order was issued by the Depiity Registrar, Cooperative Societies. 14. Leamed counsel for the petitioner furfher subinitted that this is a case where there is error apparent on the face of records as the petitioner was reinstated iu serrice with back wages aad other benefits vide order dated 7.5.1996. The appeUate authorities have set aside fhe order of the Deputy Registrar with regard to the payiuent of \ back zvages and other.benefits ^noring the setUed position oflawthat an eiaployee, who has been iBegaUy termiaated, wUl be entitled to futl back wages except to fhe extent he was gamfuUy eniployed during fhe enforced idleness. The Tribunal/Auttiorities below have clearly held that the petitioner was not gaiafully einployed elsewhere and the order of termiaation was fotind illegal and as such the petitioner was entitled to full back wages wifh ofher consequential benefits. 15. In the facts of fhe case, this Court has power and jurisdiction under Article 226 of the Constitution of India, as fhe cause of action in part, arose wifhia the territorial jurisdiction of this Court. The petitioner was posted as Marketing OfEicer in fhe services of fhe Respondent < No.l at Ambikapur, District Suiyija (C.G.), when lusservices were fflegaUy terminated on 22.6.1992. 16. After having heard leamedcounsels for fhe parties and perusing the records, we are of the view fhat fhere is no dispute wifh regard to fhe scope ofjurisdiction. ofthe High Court ui exercise ofits extra ordinary powers under Article 226 offhe Constitution oflndia to issue writ of certiorad aad to exercise tiie powers of superuitendence over aU Courts under Article 227 of fhe Constitution of India. The scope is veiy Umited. The Supreine Coiu-t in fhe case of Hari Vishnu Kamath (supra), cited by the petitioner has held in para 11 as under:- 'The writ for quashing is thus directed against a record, and as a record can be broughi up only through hum.an agency, it is issued to the person or auihority whose decision is to be reviewed. If it is the record of the decision that has io be removed by 'certiorari', then fhe fact that the tribunal has become 'furwtus offido' subsequent to ihe dedsion could have no effect on thejurisdiction of the court to rejnove the record. Ifii is a (piesiion ofissuing directions, ;( is conceivable thaf there should be in exsstence a pevson or authority to whom they cauld be issued, and when a 'certiorari' ^ other than one to quash the dedsion is proposed to be issued, the faed thaf the tribunal has ceased to exist might operate as abar to ife issue. Bui ifihetrue scope of'certiorari' to quash is thai it merely deinolishes the offending order, ihe presence of ihe offender before the courf, fhough proper, is rwi necessary for the exercise of ihe jurisdiction or to render its determination effective.' This view has been approved by the Supreuie Court subsequentiy in several decisions, later on. 17. In regard to the exercise of powers under Article 227 of fhe Constitution of India, the position of the law is weU setfled fhat the High Coirrt in exercise of its powers under Ardcle 227 of fhe Constitution of India woi.dd not act as a Court of appeal, by indulgiag uito fhe re-appreciation or evaluation offhe evidence or correcting the •< i errors in drawing infereuce Uke a Court of appeal. However fhe High Court has coinpetence to eatertain petition under Articles 226 and 227 of the Constitutioa of India on fhe grounds that (i) ttie error is niaaifest aud apparent on fhe fact of record; (ii) the decision is erroneous, based on clear ignorance or disregard to fhe provisions of law; and (iii) a grave iajustice or gross failure of justice, has beeu caused therebv. TS Proni reading of aU the docuiaents/orders passed by fhe Tribunal/Aiithorities below, it is clear that the petitioner has been denied back wages aiid other consequential benefits in a laechaaical way applyiag fhe principles of 'No work, no pay' without considering other factors as to whether fhe alleged miscouduct agauist the petitioner was proved or not and the order of reia.stateiaent was passed on the technical grouad, or the petitioner was gainfully einployed elsewhere, and not, keeping ia view fhe norm.al rule, fhat an einployee, whose services has been tenainated iUegally, will be entitled to back wages ia the facts aad circuinstances of the case. There is clear appareat error on fhe face of recoi-ds aad fhe orders were passed ignoring setUed position oflaw ra regard to grant ofback wages. Hence, we are unable to accept fhe contention of leamed counsels for the respondents fhat fhis petition filed under Ardcles 226 aad 227 ofthe Constitution oflndia is not inaintamable. 19. The only question iavolved ia fhe present petition is as to whether or not fhe petitioner is entifled to fhe back wages after termiaation order dated 22.6.1992 was quashed aitd order of reinstateiaent was passed subsequently which was confinned by fhe appellate aufhority i.e. Additional Registrar also. The Respondeuts No. 1 and 2 have not chaUenged fhe onler of rein.stateinent passed by fhe Deputy Registrar, C-o-opeiative Societies dated 7.5.1996 and confinned by fhe / ^ Additional Registrar, Co-operative Societies ui appeal dated 31.8.1996, before fhe Board of Revenue aad Madhya Pradesh Co- Operative Tribzinal. 20. Leamed counsel for fhe petitioner submitted that nonnal rule is reinstateiiient with fuU back wages and consequential benefits. Lcanied couasel further subinitted that fhe Deputy Registrar, Co- operative Societies has held fhe termmation order was iUegal and has granted re-instateinent wifh faU back wages. There is no reason as to why the petitioner be denied fuU back wages and ofher consequential beuefits on the principles of 'No work, no pay' when fhe petitioner was restrained by the iUegal order of tennmation froin working. 21. Leamed coiuisel for ttie petitioner, ia support of his contentions, relied on fhe decisions in fhe cases of M/ s Huidustan Tia. Works Pvt. Ltd. Vs. The Employees of M/s Hiadustan Tin Works Pvt. Ltd. & others A.I.R. 1979 S.C. 75. A.L.Ksdra Vs. The Project aad Equipment Corporation oflndia Ltd. A.I.R. 1984 S.C. 1361, Vidya Dhar Pande Vs. Vidyut Grih Siksha Samiti & others, (1988) 4 S.C.C. 734, Maaagini <T Director, ECIL, Hyderabad etc. Vs. B. Karunakar, etc. A.I.R. 1994 S.C. 1074, aad Union of India Vs. Madhusudaa Prasad, 2003 AIR SCW 6579. 22. Shri Abhishek Siaha, learaed counsel for fhe Respondeats No. 1 aad 3 submitted fhat fhe tennination order was set-aside on fhe techllical ;rounds fhat tihe Adniinistrative Coiiunittee which decided to issue second show cause notice after enquiry report was subuiitted, was not properly constituted and the said second show caiise notice did not iudicate ftie proposed punishiuent and as such fhe second show cause notice dated-11.3.1991 was quashed. Consequently the tennination order dated 22.6.1992 was also quashed. Leamed 10 t coiinsel fiu-ther argued that fhe Deputy Registrar has categorically held fhat fhe enquiry was proper and charges were found proved. Learaed couusel for the respondents No. 1 and 3 furfher submitted fhat the petitiouer was not entitled to back wages ia view of fh.e fact fhat the tenuhiation order was quashed on technical grounds. Leamed counsel reUed on the decision ia fhe case of Jitendra Singh Rathor Vs. Shri Baidyaaath Ayurved Bhawan Ltd & aaother, (1984) 3 S.C.C. 5, Punjab Civil SuppUes Corporation Vs. Tilak Raj Shanna, (1989) Supp 2 SCC 641, Managiag Director, ECI1 Hyderabad & others Vs. B. Kan.makar 85 ofhers, (1993) 4 SCC 727, Neeta Kaplish Vs. Presidmg Officer Labour Court & others, (1999) 1 SCC 517, PGI of Medical Education and Research Vs. Rajkumar, 2001 (2) SCC 54, Zila Sahakari Kendriya Bank Maiyadit Vs. Jagdish Chandra Ss Ors., 2001(3) SCC 332, Hindustan Motors Ltd. Vs. Tapan Kumar Bhatarcharya, 2002 (6) SCC 41, Madhya Pradesh State Electricity Board Vs. Jarina.Bi, 2003 (6) SCC 54, Hissar Central Co-operative Baak Ltd. Vs. Kaliram, 2003 (9) SCC 221, Indian Railway Construction Co. Vs. • Ajay Kumar, 2003 (4) SCC 579, Executive Engiueer, ZP Engg. Dim. & Ani. Vs. Digambara Rao and others, 2004 (8) SCC 262, and General Maaager Haryana Roadways Vs. Rudhan Sinsh, J.T. 2005(6) SC 137. In fhe course of heartng leamed counsel for fhe Respondents No. 1 and 3 ffled a letter dated 28.6.1996 along with affidav-it of the Respondents stating that fhe petitioner had filed an undertakmg on 28.6.1996 to the effect fhat fhe petitioner would not claim. back wages, if he was reinstated. It was pouited out by leamed counsel for fhe petitioner by filing ofher letter dated 16th July, 1996 fhat the undertakine dated 28.6.1996 was wifhdrawn in. yiew of the fact that the petitioner was not reinstated on the basis of fhe atleged 11 » zindertaking dated 28.6.1996. Itwas subiutted by leamed couiisel for fhe petitioner that fhe petitioner was reia.stated ia fhe service by fhe Respondents No. 1 and 2 not on fhe basis of any undertakillg, but ou the basis of the order dated 31.8.1996 of the Additional Registrar passed ia fh.e appeal filed by the Respondent No. 1. 25. Leamed counsel for fhe petitioner furfher submitted fhat the aUeged undertakiag dated 28.6.1996 was not ffled in the Tnbuiial below and as such the same should not be considered. 26. Adniittedly the atleged undertakiag dated 28.6.1996 was not given efFect to by the Respondents No. 1 aud 2 and the reiastateiueut order was passed only after fhe Additional Registrar upheld fhe order of fhe reilistateinent passed by fhe Depuly Registrar on 7.5.1996. 27. Iu fhe case of Maiiagmg Director, ECI1, Hyderabad (Siipra) the Supreine Court in para 31 has held as under:- The question whether ihe employee would be entifled to the back-wages and other beneftts from fhe date of his iSsmissal to ihe dafe of his reinstatemertt if uttimately ordered, should invariably be lefl to be dedded by the authoriiy concemed cuxording to law, after the cuhrdnalion of the proceedings and depending on the final A outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the auihoriiy should be at liberiy to dedde according to laiu how it will ireat the period from the date of. dismissal tiH the reinstatement and to what beneflts, ifany and the extent of fhe benefiis, he ivill be entitled. The reinstaiement Tna.de as a. resutt of the seiiing aside of the inquiry for fcdlure io ficrmsh the report, should be treated as a reinsiaiemeni for the purpose of hotding thefresh inquiryfrom the sfage offiimishing the report and no more, where such fi'esh inquiry is held. That will also be the correct position in law.' 28. The facts ofthe case ofNeeta KapUsh fSupra) are not applicable to the facts of fhe present case as fhat was a case, where the doiuestic enquiry was not properly aad fairly conducted and it was held fhat 12 effecti.ve opportunity of hearmg was not given to fhe appeUant, the Siiprenie Court after haviag regard to the entire circuiustances of fhe case particularly iu view of the finding of the Labour Court fhat the doinestic eiiquiiy was not properly and fairly held, reinanded the case to fhe Labour Court after requiruig fhe parties to lead fresh evidence on merits. 29'"' ^' ^.<» ?,n. lu Jitendra Singh Rafhor^s case (supra) the Supreine Court in para 3 Iias held as under;- 'Wide discreiion is vesied in fhe Tribuncd under this prorision and in a given case on ihefacts estdblished ihe Tribunal can vacate the order of dismissdl or discharge and,,give suifable directions. li is a well setlled principle of laiu that when an order of iennination of seniice is found to be bad and reinstcitentent is directed, the ivronged ivorkinan is ordinarily entitled to full bdck zvages unless for any parficular reason the whole or a part of it is asked to be withheld. The Tribunal while directing reinstatemenf, and keeping the delinquency in view could wiihhold payment of a part or the whole of the back wages. In our opinion, tke High Court was right in taking the vieiv f-hat when paymsnt of back wages eiiher in futt or part is withheld ii amounts to a penalty. WithhoWng of back wages fo the exteni ofhalfin thefacts ofthe case was, tlierefore, by way of penalty referable to proved misconduct and that situation could not have been answered by the High Court by saying that ihe relief of reinstaienwnt was being granted on terms of withholding of half of the back wages and, fherefore, did not constitute penalty. In the case of Jarina Bee (Supra) fhe Suprenie Court in para-9 has held fhat "Applying the legal principles, fhe inevitable conchision is that the High Court comrruiied an error in holding that the award offull back wages was fhe natural consequence. In fhe case ofP.G.I. ofMedical Education (Supra) fhe Supreine Court ia para- 14 has held as uilder:- 13 <p» b Payment of bdck ivages having a discretionccry element involved in it has to be dealt with, in the facts and drcumsfartces of each ccise and no straight-jacket formula can be evolved, though, hoiverer, there is statutory sanction to direct payment of back wages in its entirety. The dedsion in the ma.tter of back wages, in the instant case, was iaken by the Labour Court having regard to the facfs and circwnstances offhe matter in ihe issue, upon exercise of iis discretion and obviously in a manner which cannot bui be judidous in nature. There exists and obKgation on the part of the High Court to record in ihe judgment, fhe reasoning before denouncing a judgmsnt of an inferior tribundt, in the absence of which, the judgment cannot stand the scrutiny of otherwise being reasonable." 32. Iu the case of Indian Raitway Construction Co. Ltd. (Supra) fhe Supreine Court has approved the legal pdsition held in. para-12 ia the case of P.G.!. of Medical Education & Research's case( Supra) fhat payinent of back wages having a discretionary elem.ent involved ia. it has to be dealt wifh, in the facts aud circuiustaiices of each case and no straitjacket fonnula can be evolved, fhough, however, there is statutory saaction to dh-ect paym.ent of back wages in its entirety". This has been approved iu subsequent decisions also. 33. Aft.er haviag heard leamed counsel for fhe petitioner and leamed counsels for the respondents aad having perused records, we are of the view that fhe teniiiiiation order dated 22.6.1992 was quashed consequent upon on quashiiig of the second show cause notice dated 11.3.1991 on fhe ground fhat fhe adiniaistiative coinniittee, which decided to issue fhe second show cause noti.ee after enquiiy report was subiaitted, was not properly constituted aad the said second show cause notice did not spect&cally inention about the proposed punishmeat. However, fhe fuiduigs of fhe Enquiry Officer were not found bad. The Additional Registrar, in appeal has uot discussed aay other factor of fhe