Allowed

Shravan Kumar v. The State Of Bihar and Ors.

Patna HC6 Apr 2022CWJC/17881/2016

Case brief

AI extract

What is this about?

Petitioner challenged dismissal from service due to violation of natural justice, having been in jail custody during inquiry. Court set aside inquiry reports and dismissal orders, directed reinstatement or suspension within two months, and reserved liberty for fresh proceedings.

What did the court decide?

Inquiry report, dismissal memo, and appeal rejection set aside; respondent directed to reinstate or suspend petitioner within two months.

Shravan Kumar Vs The State Of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17881 of 2016

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Shravan Kumar son of sri Damodar sah resident of village Muzaulia p.s-bela Dist-Sitamarhi

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... ... Petitioner/s Versus

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The State Of Bihar and Ors

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the chairman cum managing Director bihar State power Holding Company ltd. patna.

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The managing Director, North bihar power Distribution company limited govt.of bihar patna

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the General manager HR/Admn. north bihar power Distribution Company limited govt. of bihar patna

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The Deputy General Manager HR/Admn. north bihar power distribution company limited govt of bihar p

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The chief Engineer Planning cum Inquiry officer north bihar power Distribution Company limited Govt

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the under secretary north bihar power Distribution Company limited Govt. of bihar patna

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr. Ranjeet Kumar, Advocate For the Respondent/s : Mr. Kinkar Kumar, SC 9 Mr. Vinay Kirti Singh, Sr. Advocate Mr. Vinay Kumar Verma, Advocate Mr. Akhileshwar Singh, Advocate, NBPDCL

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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI ORAL JUDGMENT Date : 06-04-2022

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Heard learned counsel for the parties.

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In the instant petition, petitioner has prayed for the

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following relief/reliefs:

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“i) For quashing the Inquiry report dated 29-04-2015 and supplementary Inquiry report dated 16-10-2015 on the ground that the Inquiry Officer vide his Letter No. 118 dated 07-09-2015 communicated

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the next date i.e. 19-10-2015 for fixing the date for hearing but submitted inquiry report before the said date itself.

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ii) For setting aside the order contained in Memo No. 993 dated 01-12-2015 issued by the Deputy General Manager (HR/Adm.), NBPDCL, Bihar, Patna whereby the petitioner has been dismissed from service from the post of Junior Electrical Engineer.

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iii) For setting aside the order passed by the Appellate Authority i.e. the Chairman cum Managing Director, BSPHCL, Bihar, Patna whereby the appeal of the petitioner has been communicated by the Deputy General Manager (HR/Adm.) vide Letter No. 438 dated 11-08-2016.

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iv) For a direction upon the respondents to reinstate this petitioner with all consequential benefits on the post of Junior Electrical Engineer.

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v) For any other relief/reliefs for which petitioners may be deemed entitled too.”

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Undisputedly petitioner was in judicial custody till 05.11.2015, the date on which petitioner was released on bail pursuant to the Apex Court decision dated 02.11.2015.

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Petitioner was punished on 01.12.2015. In fact, it is to be noted that second show cause notice dated 23.10.2015 was served when the petitioner was in jail custody. In the light of these facts and circumstances, it is a clear case of violation of principle of natural justice that petitioner has not been provided opportunity to appear in the enquiry to defend his case. In the light of these facts and circumstances, the petitioner has made out a case.

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Accordingly, inquiry report dated 29.04.2015, supplementary inquiry report dated 16.10.2015, Memo No. 993 dated 01.12.2015 and Letter No. 438 dated 11-08-2016 stand set aside. Petition is allowed in part. Reserving liberty to initiate disciplinary proceedings and conclude within six months from the date of receipt of this order.

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The disciplinary authority is hereby directed to regulate intervening period from 01.12.2015 to till decision is taken by the disciplinary authority in respect of regulating the period. Further the disciplinary authority is hereby directed to take note of whether the petitioner could be placed under suspension or he shall be taken back to duty in the light of Apex Court decision in the case of Managing Director, ECIL Vs. B. Karunakar reported in (1993) 4 SCC 727 read with Chairman-cumManaging Director, Coal India Limited & Ors V. Ananta Saha and Ors. reported in (2011) 5 SCC 142, in para 46 to 50, it is held as under:

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“46. In the last, the delinquent has submitted that this Court must issue directions for his reinstatement and payment of arrears of salary till date. Shri Bandopadhyay, learned Senior Counsel appearing for the appellants, has vehemently opposed the relief sought by the delinquent contending that the delinquent has to be deprived of the back wages on the principle of “no work—no pay”. The delinquent had been practising privately i.e. has been gainfully employed, thus, not

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entitled for back wages. Even if this Court comes to the conclusion that the High Court was justified in setting aside the order of punishment and a fresh enquiry is to be held now, the delinquent can simply be reinstated and put under suspension and would be entitled to subsistence allowance as per the service rules applicable in his case. The question of back wages shall be determined by the disciplinary authority in accordance with law only on the conclusion of the fresh enquiry.

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It is a settled legal proposition that the result of the fresh enquiry in such a case relates back to the date of termination. The submissions advanced on behalf of the appellants that the result of the enquiry in such a fact situation relates back to the date of imposition of punishment, earlier stands fortified by a large number of judgments of this Court and particularly in R. Thiruvirkolam v. Presiding Officer [(1997) 1 SCC 9 : 1997 SCC (L&S) 65 : AIR 1997 SC 633] , Punjab Dairy Development Corpn. Ltd. v. Kala Singh [(1997) 6 SCC 159 : 1997 SCC (L&S) 1434 : AIR 1997 SC 2661] and Graphite India Ltd. v. Durgapur Projects Ltd. [(1999) 7 SCC 645].

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In ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30 : (2009) 1 SCC (L&S) 126 : AIR 2009 SC 161] , this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the enquiry afresh from the stage where it stood before the alleged vulnerability surfaced. However, for the purpose of holding fresh enquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages, etc. is determined by the disciplinary authority in accordance with law after the fresh enquiry is concluded.

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The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide U.P. SRTC v. Mitthu Singh [(2006) 7 SCC 180 : 2006 SCC (L&S) 1590 : AIR 2006 SC 3018] , Akola Taluka Education Society v. Shivaji [(2007) 9 SCC 564 : (2007) 2 SCC (L&S) 679] and Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale [(2009) 2 SCC 288 : (2009) 1 SCC (L&S) 372]. 50. In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date of first termination order till date, cannot be entertained and is hereby rejected. In case the appellants choose to hold a fresh enquiry, they are bound to reinstate the delinquent and, in case, he is put under suspension, he shall be entitled to subsistence allowance till the conclusion of the enquiry. All other entitlements would be determined by the disciplinary authority as explained hereinabove after the conclusion of the enquiry. With these observations, the appeal stands disposed of. No costs.”

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