Supreme Court - Daily Orders
Bharat Heavy Electricals Limited vs Umesh Eknath Agalawe on 4 March, 2021
Bench: S. Abdul Nazeer, Sanjiv Khanna
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). 811 OF 2021
(Arising out of SLP (C) No. 3757 of 2021)
BHARAT HEAVY ELECTRICALS LIMITED Appellant(s)
VERSUS
UMESH EKNATH AGALAWE & ORS. Respondent(s)
O R D E R
Mr. Rameshwar Prasad Goyal, learned counsel appearing on caveat, waives notice.
Leave granted.
Having heard learned counsel for the parties, we are not inclined to interfere with the impugned judgment whereby the order of removal of respondent no.1 passed in the disciplinary proceedings has been set aside. It is rightly held that the effect would be that the first respondent would be reinstated and the appellant is at liberty to continue with the disciplinary proceedings by appointing an inquiry officer other than the one who had earlier conducted the inquiry. Further, the appellant has been given liberty to decide Signature Not Verified whether respondent no. 1 should be permitted to resume duty or Digitally signed by Neelam Gulati Date: 2021.03.05 15:54:34 IST Reason: placed under suspension pending inquiry. The impugned 2 judgment also records that once a new inquiry officer is appointed and the first respondent put to notice, he shall cooperate. Similarly, the first respondent shall be entitled to fair, reasonable and adequate opportunity to lead defence. However, the direction given in the impugned judgment that the first respondent is entitled to 50 per cent back wages is not in consonance with the ratio in Managing Director, ECID, Hyderabad & Others vs. B. Karunakar & Others [(1993) 4 SCC 727], wherein it has been held:
“31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above 3 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. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.” (emphasis supplied) In case the appellant decides to continue with the disciplinary proceedings, an option given in the impugned judgment itself, the question of back wages is to be considered and decided on conclusion of the disciplinary proceedings. Of course, in case the appellant does not wish to continue with the disciplinary proceedings, the direction to pay 50 per cent back wages to respondent no. 1 would apply and should be followed.
In view of the above findings and to this extent, we modify the direction that respondent no. 1 would be entitled 4 to 50 per cent back wages, by holding and directing that the question of payment of back wages would be decided on conclusion of the disciplinary proceedings if the appellant decides to continue with the disciplinary proceedings.
The appellant would take the decision whether or not to continue with the inquiry within a period of one month from today. Further, if the decision to continue with the proceedings is taken, the disciplinary proceedings would be completed preferably within a period of six months from the date of its initiation.
With the aforesaid modification, the appeal is partly allowed. No order as to costs.
.................J. (S. ABDUL NAZEER) ................J. (SANJIV KHANNA) NEW DELHI MARCH 04, 2021 5 ITEM NO.2 Court 11 (Video Conferencing) SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). 3757/2021 (Arising out of impugned final judgment and order dated 04-02-2021 in WP No. 5660/2018 passed by the High Court of Judicature at Bombay) BHARAT HEAVY ELECTRICALS LIMITED Petitioner(s) VERSUS UMESH EKNATH AGALAWE & ORS. Respondent(s) (FOR ADMISSION and I.R. and IA No.30529/2021-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES ) Date : 04-03-2021 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE S. ABDUL NAZEER HON'BLE MR. JUSTICE SANJIV KHANNA For Petitioner(s) Ms. Aishwarya Bhati, ASG Mr. Surjendu Sankar Das, AOR Ms. Annie Mittal, Adv For Respondent(s) Mr. Gagan Sanghi, Adv.
Mr. Rameshwar Prasad Goyal, AOR UPON hearing the counsel the Court made the following O R D E R Mr. Rameshwar Prasad Goyal, learned counsel appearing on caveat, waives notice.
Leave granted.
The appeal is partly allowed in terms of the signed order.
Pending applications, if any, also stand disposed of.
(NEELAM GULATI) (KAMLESH RAWAT)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
(Signed order is placed on the file)