IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No.50 of 2006 Assistant Commissioner, Kendriya Vidyalaya & others …… Appellants Versus Anil Kumar S/o Data Ram …Respondent Dated: November 20, 2009 Coram: Hon’ble Tarun Agarwala, ACJ. Hon’ble Dharam Veer, J. Hon’ble Tarun Agarwala, ACJ. (Oral) Heard Sri Gopal Narain, learned counsel for the appellants and Sri Ramji Srivastava, learned counsel for the respondent. The present special appeal is against the judgment dated 3.7.2006 passed by the learned Single Judge allowing th`e writ petition and quashing the order of termination and directing reinstatement of the writ petitioner with all the consequential service benefits. The employers, being aggrieved by the said order, have filed the present appeal. The brief facts leading to the filing of the writ petition is that the writ petitioner was initially suspended and thereafter charge sheeted for certain misconduct. A domestic enquiry was conducted in which the petitioner was given an opportunity to defend himself. The Inquiry Officer found the charges to be correct against the petitioner and pursuant to the inquiry report, the disciplinary authority passed an order of dismissal of the services of the petitioner. The petitioner preferred an appeal which was dismissed and thereafter a writ petition was filed. 2 The learned Single Judge after considering the matter held that the petitioner was neither afforded adequate and reasonable opportunity to defend himself by the Inquiry Officer nor the Disciplinary Authority itself afforded opportunity to the petitioner to defend himself against the Inquiry Officer’s report. The learned Single Judge found that the enquiry stood vitiated for non- adherence of the provisions as contained under Article 311(2) of the Constitution of India. In effect, the learned Single Judge found that the principles of natural justice, as enumerated under Article 14 of the Constitution of India, were not complied with by the employers. In this backdrop, the learned Single Judge directed reinstatement of the petitioner with continuity of service and with all consequential service benefits. Having heard the learned counsel for the parties, this Court is of the opinion that the learned Single Judge fell in error in directing the reinstatement of the petitioner with all the consequential service benefits. The law is settled that where a domestic inquiry is vitiated on account of violation of principles of natural justice on the ground that full opportunity was not given to the incumbent to defend himself, in that event, the matter has to be remitted back to the Inquiry Officer to start the inquiry afresh from the stage where it had been left off. This proposition of law was propounded by a Constitution Bench of the Hon’ble Supreme Court in the case of Managing Director, ECIL Vs. B. Karunakar reported in AIR 1994 SC 1074 wherein the Hon’ble Supreme Court held as under: - “7(v) ……………. Where after following the above procedure, the Courts /Tribunals 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 continuing the inquiry, by placing 3 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, he will be entitled.” The same proposition was again followed by the Hon’ble Supreme Court in 2004 Volume 7 SCC 581 in the case of NTC (WBAB&O) Ltd. & another Vs. Anjan K. Saha, wherein the Hon’ble Supreme Court remitted the matter to the Inquiry Officer to start the inquiry afresh on account of non-supply of the inquiry report. Learned counsel for the respondent submitted that no useful purpose would be served in remitting the matter to the Inquiry Officer after a long lapse of time and in the given facts and circumstances, it would be proper that the petitioner is reinstated with all consequential benefits and that the exercise of a domestic inquiry would be an exercise in futility. In support of his submission, the learned counsel for the respondent has placed reliance upon a decision of the Hon’ble Supreme Court in the case of Hardwari Lal Vs. State of U.P. & others reported in 2000 SCC (L&S) 85 and in the matter of UPSRTC Vs. Mahesh Kumar Mishra & others reported in 2000 SCC (L&S) 356, wherein the Supreme Court, after finding that the principles of natural justice were violated, found it fit to 4 reinstate the workman on the ground that a long lapse of time had elapsed. In our opinion, the judgments cited by learned counsel for the respondent are clearly distinguishable and are not applicable to the present facts and circumstances of the case. The law as propounded by the Constitution Bench will take precedence and, in the given circumstances, where the charge is of a serious nature, is required to be adjudicated. Consequently, the Court is of the opinion that the matter is required to be remitted again to the Inquiry Officer to de novo start the inquiry from the stage where it had left off. In view of the aforesaid, the order of the learned Single Judge to the extent of reinstatement with continuity of service cannot be sustained and to that extent, the order is set aside and is modified to the effect that the disciplinary authority is directed to de novo start the enquiry afresh and provide full opportunity to the writ petitioner to defend himself. The Court finds that the writ petitioner was under suspension and, consequently the Court directs that the writ petitioner would remain under suspension during the inquiry proceedings and would be entitled for suspension allowance. The enquiry would be completed and final orders would be passed by the Disciplinary Authority within six months from the date of the production of a certified copy of this order. The arrears of salary from the initial period of suspension till the conclusion of the inquiry proceedings would remain in abeyance and would be subject to final order, which would be passed by the disciplinary authority. Special appeal stands allowed. No order as to costs. (Dharam Veer, J.) (Tarun Agarwala, ACJ.) 20.11.2009 Rdang 5