HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.215 of 2007 (S/B) State of Uttarakhand and others … Petitioners Versus Rishipal Singh and another …. Respondents Dated:- 24th September, 2010 Coram: Hon. Tarun Agarwala, J. Hon’ble V. K. Bist, J. Hon’ble Tarun Agarwala, J. (Oral) The facts leading to the filing of the present writ petition is, that the respondent no.1 Rishipal Singh was appointed as a Constable in U.P. Police in the year 1980 and, at the relevant point of time, was posted at Lansdown in Pauri Garhwal, which is now in Uttarakhand. During his posting at Lansdown, the respondent no.1 was deputed at Police Station Laxman Jhula and during the duty hours, the said respondent went home without informing the department and, in this manner, the respondent remained on unauthorised leave from 13th July, 1997 to 17th October, 1997. Upon joining his duty, the disciplinary authority issued a chargesheet and, without waiting for an enquiry, dismissed the respondent from the services by an order of 30th March, 1998. The said respondent preferred an appeal, which was allowed by an order dated 30th October, 1998, directing reinstatement in service and further directed the disciplinary authority to proceed with the enquiry in accordance with law. 2. Pursuant to the remand order, the disciplinary authority appointed an enquiry officer to conduct the enquiry. The enquiry officer gave notices and an opportunity to the respondent to appear and place his defence. It is alleged that the respondent used to appear before the enquiry officer off and on and, in this manner, the enquiry officer conducted the enquiry and submitted a report holding that the charges stood proved against the said respondent. The disciplinary authority considered the enquiry report and accepted the finding and, based on the said finding, issued a notice to the respondent on 7th January, 2000 to show cause as to why an order of punishment, namely, dismissal from the services should not be passed. The said respondent did not submit any reply and, accordingly, the disciplinary authority, after considering the past misconduct, issued an order dated 21st January, 2000 dismissing the respondent from service. The said respondent preferred an appeal, which was dismissed and thereafter, preferred a revision, which was also dismissed. 3. The respondent, being aggrieved by the aforesaid orders, filed a claim petition before the Public Services Tribunal. The Public Services Tribunal, by its order dated 25th May, 2007 allowed the appeal and set aside the order of dismissal directing reinstatement with 50% backwages. 4. The State Government, being aggrieved by the order of the Tribunal, has filed the present writ petition. 5. The Tribunal in its order found that the enquiry was conducted against the principles of natural justice and that a proper opportunity of hearing was not provided to the said respondent. The Tribunal further found that the disciplinary authority had passed the order of dismissal, after considering the past conduct which could not be done in view of the decision in Satpal Singh Vs. State of Haryana SLR 1999 (2) 320, wherein it was held that a punishment awarded for earlier absence of an employee could not be the subject matter of the enquiry nor could the employee be dismissed from service. In the light of the aforesaid, the Tribunal directed reinstatement of the respondent with 50% backwages. 3 6. Having heard the learned counsel for the parties, the Court is of the opinion that the Tribunal committed an error in reinstating the respondent with 50% backwages. The moment the Tribunal comes to the conclusion that the enquiry was conducted against the principles of natural justice and that proper opportunity to defend was not afforded to the respondent, the Tribunal should have allowed the claim petition and remitted the matter to the disciplinary authority to complete the enquiry proceedings from that stage onwards, namely, from the stage when the respondent was not provided sufficient opportunity in the disciplinary proceedings. This view of ours is in consonance with the principle enunciated by a majority decision of the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad Vs. B. Karunakar reported in AIR 1994 SC 1074, wherein the Hon’ble Supreme Court held: “7.(v) …………….. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back- wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled.” 7. Consequently, on this short ground, the order of the Tribunal cannot be sustained and is set aside. This Court is of the 4 opinion that in the light of the aforesaid decision of the Supreme Court, the matter has to be sent back to the disciplinary authority to complete the enquiry proceedings afresh, after providing full opportunity to the respondent no.1. We also, however, observe that the Tribunal’s finding while considering the past misconduct is incorrect and the decision of Satpal Singh’s case is not applicable in the instant case. The Court is of the opinion that the past misconduct of an employee can be considered and can be seen as a mitigating factor while considering the proposed punishment. In the light of the aforesaid, the order of the Tribunal is quashed. The writ petition is allowed. The matter is remitted again to the disciplinary authority to appoint an enquiry officer and conclude the enquiry after affording an opportunity of hearing to the respondent to defend himself. The enquiry shall be completed within six months from the date of production of the certified copy of this order and final orders will be passed by the disciplinary authority within a month thereafter. During the enquiry proceedings, the respondent shall be treated as a suspended employee and would be paid his suspension allowance. The order for the wages for the period from the date of termination till the conclusion of the enquiry would be passed by the disciplinary authority when final orders are passed after conclusion of the enquiry. (V.K. Bist, J.) (Tarun Agarwala, J.) Dated 24.09.2010 Arpan