Allahabad High Court
Shri Mainuddin S/O Shri Lal Khan vs Managing Director, U.P. State Road ... on 20 February, 2008
Author: Sabhajeet Yadav
Bench: Sabhajeet Yadav
JUDGMENT Sabhajeet Yadav, J.
1. The main question in controversy involved in this case is that whether the issue concluded at higher forum can be re-agitated in remand proceeding or only that issue can be considered which has been remanded by higher forum?
2. The relevant facts having material bearing with the question in controversy involved in the case are that after holding disciplinary inquiry on the charges of misconduct levelled against 28 employees including the petitioner in respect of same incident on similar misconducts various penalties have been inflicted upon them, some persons were inflicted minor penalties and some were inflicted major penalties including the stoppage of 3,4 or 5 increments but a very harsh penalty of dismissal from service has been imposed upon the petitioner. Feeling aggrieved against the order of dismissal passed by disciplinary authority on 22.5.1996 the petitioner has unsuccessfully preferred departmental appeal before the Appellate Authority and thereafter has filed earlier writ petition No. 31704 of 1996 before this court.
3. While deciding the aforesaid case on 15.3.2002 this Court has been pleased to observed as under:
According to the petitioner certain allegations was made against 28 employees of UPSRTC Regional Office, Varanasi in the Body and re conditioning Section in the Regional Office of UPSRTC, Varanasi, The disciplinary action against all the 28 employees including the petitioner was taken. The petitioner has been dismissed from service. The appeal filed by the petitioner has also been dismissed by the Regional Manager. A supplementary affidavit was filed by the petitioner, in which it has been stated that in respect of the remaining employees a lenient view has been taken by giving some minor punishment and the petitioner has been arbitrarily discriminated. Copies of some of the orders has been collectively filed as Annexure SA-1 to the supplementary affidavit. From perusal of the aforesaid annexures it appears that all the employees were involved in similar type of misconduct. Some of them have been given minor punishment whereas the petitioner has been dismissed from service. It goes without saying that if all the employees were involved in similar type of misconduct then the punishment ought to be same. The petitioner appears to have been discriminated without any rhyme or reason as he has been imposed major punishment of dismissal from service, which in the circumstances cannot be sustained. Since the misconduct has been found to have been proved by the authorities, the interest of justice would be best served, if the petitioner is directed to approach the Managing Director, UPSRTC, Lucknow within one month from today, he shall consider the case of the petitioner alongwith the order passed in respect of other employees of the same incident and may pass similar order of punishment. The Managing Director shall decide the matter within six weeks thereafter.
With the aforesaid observations, the writ petition is finally disposed of.
4. Learned Counsel for the petitioner has informed the court and pointed out that the petitioner has made representation before the Managing Director, UPSRTC alongwith the copy of order dated 15.3.2002 passed by this Court in aforesaid writ petition but while misinterpreting the contents and tenor of the decision rendered by this Court on 15.3.2002 in earlier writ petition filed by the petitioner the Managing Director, UPSRTC has passed the impugned order dated 18th May 2002 whereby the stand taken earlier by UPSRTC dismissing the petitioner from service has again been reiterated hence this petition.
5. Learned Counsel for the petitioner has submitted that the impugned order dated 18.5.2002 passed by Managing Director, UPSRTC runs contrary to the contents and tenor of the decision of this Court dated 15.3.2002 passed in writ petition earlier filed by the petitioner, therefore, cannot be sustained at all.
6. Contrary to it, Sri Ganga Prasad Gupta, Advocate appearing for UPSRTC has vehemently contended that the case of petitioner was quite distinguishable from the case of other 27 employees who were subjected to disciplinary action alongwith the petitioner in respect of the same incident and some of them were subjected with the minor penalty whereas some of them given major penalty including stoppage of 3 to 5 Annual increments proportionately to the gravity of the charges found proved against them. Since the gravity of the charges levelled and found proved against other employees were quite distinguishable from the charges which were found proved against the petitioner and the charges were much more grave than them, therefore, the case of petitioner was quite distinguishable and accordingly he has been punished appropriately by punishment of dismissal from service thus, no fault can be found in the order of dismissal having regard to the gravity of charges found proved against him.
7. Learned Counsel appearing for UPSRTC has further submitted that since a fresh decision was to be taken on the quantum of punishment by the Managing Director of UPSRTC and while remanding the case matter has been left over by this Court upon the Managing Director of U.P.S.R.T.C., therefore, while taking the impugned decision dated 18th May 2002 the Managing Director himself has examined the matter and cases of all those employees who have been awarded lesser punishment than the petitioner and found that the charges which were proved against the petitioner were much serious and grave than that of those employees, therefore, the penalty of dismissal of petitioner was found justified. In support of his aforesaid submissions he has also placed reliance upon the decisions rendered in Ramjit Gupta v. The Labour Court, U.P., Betia Hata, Gorakhpur and Ors. (2006) 2 UPLBEC 1862 and B. Swamy v. The Depot Manager, APSRTC (2007) 2 UPLBEC 1788.
8. While refuting the contention of Sri Ganga Prasad Gupta, learned Counsel for respondents, Sri A.R. Dubey, learned Counsel for the petitioner has further submitted that in the light of findings recorded by this Court in Judgment and order dated 15.3.2002 in writ petition earlier filed by the petitioner, there appears hardly any scope for such arguments by the counsel appearing for respondents. He has submitted that the Hon'ble Apex Court in Bharat Coke Co. v. Trade Tax Officer and in Radha Raman Samant v. Bank of India and Ors. has held that the issue concluded at higher forum can not be re-agitated in remand proceeding and only that issue can be considered, which has been remanded by the higher forum.
9. Heard Sri A.R. Dube, learned Counsel for the petitioner and Sri Ganga Prasad Gupta for the U.P.S.R.T.C.
10. In view of rival submissions of learned Counsel appearing for the parties, the question which arises for consideration of this Court is that as to whether Managing Director of UPSRTC could pass impugned order dated 18.5.2002 afresh on merit of the charges found proved against the petitioner by re-agitating the matter concluded by this Court in the Judgment and order dated 15.3.2002 independently of other employees who have been subjected to disciplinary proceeding alongwith the petitioner in respect of same incident for similar charges or his quantum of punishment could be restricted to be at part with them or on such remand the Managing Director was required to examine only that issue which was left over for his disposal according to the direction contained in the order of remand?
11. In this connection, it is to be noted that a mere reading of the decision of this Court rendered in Writ Petition No. 31704 of 1996 earlier filed by the petitioner, indicates that while deciding the case this Court has clearly held that from a perusal of enclosures filed with the supplementary affidavit it appears that all the employees were involved in similar type of misconduct, some of them have been given minor punishment whereas the petitioner has been dismissed from service. It goes without saying that if all the employees were involved in similar type of misconduct then punishment ought to be same. The petitioner appears to have been discriminated without any rhyme or reason as he has been imposed major punishment of dismissal from service, which in the circumstances cannot be sustained. Since the misconduct has been found proved by the authorities, the interest of justice would be best served if the petitioner is directed to approach Managing Director, UPSRTC who shall consider the case of petitioner alongwith other employees of same incident and may pass similar order of punishment.
12. Now coming to the decisions of Hon'ble Apex Court upon which learned Counsel for the petitioner has placed reliance in support of the case of the petitioner. In Radha Raman Samant v. Bank of India and Ors. (2004) 1 SCC 60S the Hon'ble Apex Court has held that only that issue can be considered which have been remanded by Higher court or authority. The pertinent observation made in para 12 of the decision is extracted as under:
12. ...Therefore, the learned Single Judge was bound to address only on one issue upon which the matter had been remanded. Thus, the Division Bench could not have overlooked these facts in the appeal arising from the order of the learned Single Judge on the second occasion after remand and need not have gone into the question as to whether the writ petition could have been entertained at all or not. Therefore, we are of view that the High Court could not have overlooked these facts and interfered with the order of the learned Single Judge.
13. The same view has been reiterated by Hon'ble Apex Court in Bharat & Co. v. Trade Tax Officer and Anr. . The pertinent observation made by Hon'ble Apex Court in para 19 of the decision is extracted as under:
19. ...The Trade Tax Tribunal as early as on 31.3.2000 had held that the appellant had the locus standi to ask for the release of goods because the appellant was the owner of the goods. The decision of the Tribunal was not challenged by the respondents. The decision of the Tribunal not being challenged, the issue of title was concluded in the appellant's favour. In the face of this order, it was not open to the Assistant Commissioner, Trade Tax on remand to reject the application of the appellant on the ground that it was not the owner of the goods. The High Court should have considered this aspect of the matter particularly when it had been expressly drawn to the High Court's attention. The High Court was also precluded from re-deciding the same issue between the same parties.
14. In view of aforestated legal position, I am of the considered opinion that there can be hardly any scope for argument on behalf of respondents that the misconduct of the petitioner is distinguishable from other employees and he has not been discriminated from other employees in respect of punishment imposed upon him in wake of clear and unambiguous finding of this Court on the question of similarity of charges of misconduct and discrimination made against him while awarding penalty and further finding that the petitioner appears to have been discriminated without any rhyme or reason as he has been imposed major punishment of dismissal from service, which in the circumstances can not be sustained. After recording the aforesaid fining this Court has given liberty to approach the Managing Director who was required to pass similar order of punishment, therefore, in my opinion, the aforesaid issue has already been concluded by this Court. In remand proceeding the same could not be re-agitated on merits; in view of law laid down by Hon'ble Apex Court in Bharat Coke Co.'s case (supra) and Radha Raman Samant case (supra) and the only course was open to the Managing Director to pass similar order of punishment in case of petitioner like other employees.
15. In given facts and circumstances of the case, the Managing Director of UPSRTC could pass appropriate order on the question of quantum of punishment of petitioner without insisting upon the earlier punishment imposed against him by taking the view in mind as taken in other aforesaid 27 employees. In such situation, it is needless to say that at the most, the Managing Director could impose any maximum punishment upon the petitioner to the extent of which the punishment has been imposed against any one of 27 employees subjected to the disciplinary action in respect of same incident on similar charges. But it was not at all open to the Managing Director of UPSRTC to insist and go on justifying earlier decision taken against the petitioner, which has been quashed by this Court on finding it harsh and discriminatory. The decisions cited by learned Counsel for UPSRTC in my considered opinion can be of no assistance to the case of respondents, as this Court is neither called upon to review the judgment and order dated 15.3.2002 passed by this Court nor can take different view in matter on merit as if sitting in appeal over the aforesaid decision.
16. However, such argument could be advanced by the learned Counsel for the respondents in the first innings of litigation in earlier writ petition filed by the petitioner. In case such argument could not find favour, it was open to the UPSRTC to challenge the decision rendered by this Court dated 15.3.2002 before available higher forum but it is not open to the authorities to sit over the Judgment of this Court and take different view in the matter of its own contrary to the tenor of the decision and direction of this Court when the issue was concluded against the respondents and case was remanded to the Managing Director, UPSRTC for limited purpose of passing fresh order on the quantum of punishment similar to the punishment awarded against those 27 other employees. While doing so, it was not open to him to deal with the quantum of punishment independently from other employees on merit. In my opinion, such approach of authority is contrary law being in the teeth of the decision of this court.
17. In view of aforesaid discussions, the impugned order passed by Managing Director, UPSRTC dated 18th May 2002, contained in Annexure-1 of the writ petition cannot be sustained and is hereby quashed. However the matter is again remitted back to the Managing Director of UPSRTC to take fresh decision on the question of quantum of punishment to be imposed upon the petitioner in the light of observations made herein before.
18. Since no person out of 27 persons involved in the aforesaid incident has been dismissed or removed from service, therefore, the petitioner can also not be removed from service, Accordingly the respondents are directed to reinstate the petitioner in service from the date of dismissal alongwith the continuity of service and consequential benefits of seniority and the respondents are further directed to pay the petitioner 40% monthly salary as arrears of salary alongwith other emoluments attached to the post for the period during which the petitioner was out of employment within a period of three months, provided he furnishes proof of his non-employment during the aforesaid period before the authorities concerned and authorities concerned is satisfied about his non-employment during the said period. With the aforesaid observations and directions, the writ petition succeeds and allowed.