Andhra Pradesh High Court - Amravati
The Eastern Power Distribution Company vs G. Satyanarayana on 5 January, 2022
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE M. SATYANARAYANA MURTHY
WRIT APPEAL NO.1268 OF 2017
(Proceedings through Physical mode)
W.A.No.1268 of 2017
The Eastern Power Distribution Company,
Of A.P. Visakhapatnam rep by its,
Chief General Manager/HRD And another ..... Appellants
Versus
G. Satyanarayana,
s/o G.V. Venkaiah,
Aged 57 years,
O/o Accounts Office, APEP Distribution,
Company Limited, Rajahmundry,
R/o 42-9-33, Kothapeta, Rajahmundry,
East Godavari District .... Respondent
Counsel for the Appellants : Mr. Metta Chandra Sekhar
Counsel for Respondent : Mr. Vedula Srinivas
JUDGMENT
Dt.05.01.2022 (Per M. Satyanarayana Murthy, J) The Eastern Power Distribution Company filed this writ appeal under Clause 15 of Letter Patent, aggrieved by the order passed by the learned single Judge of High Court of Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh in W.P.No.16288 of 2004 dated 29.04.2016, whereunder, the learned single Judge set-aside the proceedings of the first appellant herein dated 31.08.2004, while directing to pay all the monetary benefits to the petitioner, as if he CJ & MSM,J WA_1268_2017 2 continued in service with effect from 12.04.2003 till the date of his retirement, including retiral benefits.
The respondent herein was the writ petitioner and the appellants herein were the respondents before the learned single Judge. They will hereinafter be referred as arrayed in W.P.No.16288 of 2004 for the sake of convenience.
The writ petitioner - G. Satyanarayana filed the writ petitioner under Article 226 of the Constitution of India, claiming writ of Certiorari to quash the Proceedings of the first respondent dated 31.8.2004 by declaring the same as arbitrary and for a consequential direction to the respondents to extend all service benefits to the petitioner as a Junior Accounts Officer.
It is alleged that, the petitioner joined in the service of the State Electricity Board as Typist in the year 1971 and by virtue of seniority, the petitioner was promoted as L.D.C in the year 1992 after he got through Accounts Test for Subordinate Officers Part I. In order to get promotion as Junior Accounts Officer, the requisite qualification is graduation in Commerce or Accountancy High Grade Examination. The petitioner prosecuted B.Com course through a private study center during the years 1989-1991 and appeared for the examination conducted by Andhra University. But, he did not receive Degree Certificate from the University. The petitioner also appeared for B.Com examination conducted by Ranchi University through another Study Centre in February 1993 with Registered No.30836. The petitioner got the Provisional Certificate from Ranchi University on 10.11.1993; he CJ & MSM,J WA_1268_2017 3 submitted the same to the department and he was promoted in the year 1996. In the year 2000 the petitioner submitted a copy of B.Com Degree certificate obtained from Andhra University requesting the respondent authorities to make appropriate entry in his Service Register. Thereupon, the respondents started enquiry with both Universities about the genuineness of the B.Com Degree certificate produced by the petitioner and received replies that those certificates are not genuine.
The petitioner was placed under suspension vide proceedings dated 12.04.2003 on the ground that he is guilty of misconduct of producing bogus degree certificates for gaining official favour. The petitioner questioned the same before the High Court in W.P.No.7743 of 2003 challenging the orders dated 12.04.2003 and the order was suspended vide WAMP No.10106 of 2003 on the ground that the second respondent therein is not the competent authority to place the petitioner under suspension. The order was made absolute and W.P.No.7743 of 2003 was allowed on 31.10.2003 after hearing both the counsel. Thereafter, the respondents filed W.A.No.838 of 2004 and the same was dismissed by the Division Bench also.
The second respondent appointed the Divisional Engineer (Enquiries) as Enquiry Officer to enquire into the alleged misconduct against the petitioner and served a memo dated 22.08.2003. The only charge framed against the petitioner is that, the petitioner obtained employment by obtaining false certificates of two universities and hence the act of the petitioner, securing employment by producing fake certificates amounts to cheating the employer. The petitioner submitted his explanation requesting for oral enquiry. The Enquiry Officer CJ & MSM,J WA_1268_2017 4 conducted domestic enquiry and only one witness was examined before him for the management to mark the Degree Certificates submitted by the petitioner. The management did not mark any documents like the letters addressed by the Universities and the replies alleged to have been given by the Universities stating that the degree certificates are fake and no preliminary enquiry report of the Vigilance Department is marked. The Enquiry Officer has drawn his findings stating that the charge is partly proved and found that the petitioner got promotion to the post of Junior Accounts Officer by producing fake certificates as stated in the charge memo.
On the basis of the reply given by the petitioner, the second respondent issued show cause notice on 18.03.2004 calling for written explanation and accordingly, the petitioner submitted the same on 14.04.2004, but the respondent imposed major penalty of removal from service.
It is the specific contention that this petitioner was not afforded any opportunity during enquiry and the respondents did not produce any document to prove that the certificates are fake and the letters addressed by the respondents to the Universities and reply received from the Universities were not marked as exhibits by examining any competent witness to speak about the letters issued by the respondents to the Universities to find that this petitioner is guilty for the serious misconduct of producing fake certificates to obtain promotion. Thus, failure to supply copies of those letters addressed by the respondents to the Universities and reply received from the Universities as exhibits and examining any competent witness deprived this petitioner an opportunity CJ & MSM,J WA_1268_2017 5 to disprove those documents and it is violation of mandatory requirement under the Andhra Pradesh State Electricity Board Employees Conduct Regulations (for short 'Regulations'), so also principles of natural justice and that this petitioner was not dealt with fairly by the department in the enquiry and requested to quash the proceedings dated 31.08.2004 by examining the record and also requested to issue Writ of Certiorari.
The respondents filed counter affidavit in the writ petition denying material allegations, inter alia, contending that the petitioner produced fake certificates, one from Ranchi University and the other from Andhra University to get promotion as Junior Accounts Officer which constitutes grave misconduct. The respondents also addressed letters to Andhra University and Ranchi University to find out the genuineness of the certificates. In turn, both Universities addressed letters to the respondents certifying that the certificates obtained by the petitioner are fake. Thereafter, enquiry was conducted, found the petitioner guilty and final order was passed after conducting enquiry in accordance with law and requested to dismiss the writ petition.
The learned single Judge held that, failure of the respondents to furnish copies to the delinquent employee/writ petitioner and using the documents which are not marked to arrive at conclusion that this petitioner produced fake documents, amounts to denial of opportunity to this petitioner and such enquiry is vitiated by an irregularity and accordingly set-aside the dismissal order dated 31.08.2004 by issuing writ of Certiorari. The learned single Judge recorded a finding that the charge memo against this petitioner is different from the finding recorded by the Enquiry Officer and in the absence of any specific charge, the CJ & MSM,J WA_1268_2017 6 finding recorded by the Enquiry Officer cannot be sustained. On this ground also, the learned single Judge accepted the contention of the writ petitioner and allowed the writ petition by issuing Writ of Certiorari.
Aggrieved by the order of the learned single Judge in W.P.No.16288 of 2004 dated 29.04.2016, the respondents therein/appellants herein filed the present writ appeal on the ground that the order of the learned single Judge is vitiated by irregularities and it is without any basis and that the learned single Judge arrived at wrong conclusion by allowing the writ petition, setting-aside the dismissal order dated 31.08.2004. Learned counsel for the appellants herein contended that, the learned single Judge relied on the judgments of the Apex Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya1 and observations made in J.K. Synthetics Limited v. K.P. Agrawal2 without considering the facts in issue.
It is further contended that, issuing direction to the respondents/appellants herein to pay all monetary benefits to the petitioner as if he continued in service with effect from 12.04.2003 till the date of his retirement, including retiral benefits is a major irregularity, since the petitioner was kept under suspension from 12.04.2003. The petitioner produced two certificates of B.Com degree from two different universities i.e. one from Ranchi University and another from Andhra University and very producing two certificates is suffice to conclude that those two certificates are fake and thereby the learned single Judge ought not to have allowed the writ petition granting 1 (2013) 10 SCC 324 2 (2007) 2 SCC 433 CJ & MSM,J WA_1268_2017 7 such relief and thereby the order is perverse and requested to set-aside the order of the learned single Judge.
During hearing, Mr. Metta Chandra Sekhar, learned counsel for the appellants would draw attention of this Court to certain observations made by the learned single Judge at Paragraph No.24 of the order, which are general in nature and contended that the learned single Judge on sympathies allowed the writ petition without considering the real controversy. It is also contended that, production of two B.Com degree certificates; obtained one from Ranchi University and the other from Andhra University is itself suffice to establish that the petitioner produced fake certificates to get promotion, as the petitioner is not entitled to prosecute B.Com degree simultaneously in two different universities privately. Therefore, this aspect was not considered by the learned single Judge and that, the order dated 29.04.2016 was passed on technicalities, which is liable to be set-aside in this intra court appeal.
Whereas, Mrs. Poppuri Priyanvitha, learned counsel representing Mr. Vedula Srinivas, contended that, in the absence of any specific charges, finding the writ petitioner guilty for different charge is a grave irregularity. On this ground, the order passed by the leaned single Judge is to be sustained. Apart from that, the order passed by the Enquiry Officer is not based on material evidence and it is vitiated by irregularity, for the reason that, the basis for framing the charge is the letters addressed by the respondents to the Universities and reply received from the Universities i.e. Ranchi University and Andhra University certifying that those certificates are not genuine, but fake. Those documents were not supplied to the petitioner along with charge memo or at any CJ & MSM,J WA_1268_2017 8 subsequent stage. Therefore, the petitioner had no opportunity to deny those letters. It is also contended that, the letters addressed by the respondents to the Universities and reply received from the Universities were not marked as exhibits by examining any competent witness to speak about those documents, relied on by the Enquiry Officer to record his findings. When the documents were not supplied and not marked as exhibits by examining any competent witness, such documents cannot be relied on and failure to supply documents to the petitioner is a grave irregularity, besides failure to comply with the principles of natural justice. On this ground alone, the order passed by the learned single Judge holding that the enquiry is vitiated by irregularities is legal and requested to dismiss the writ appeal.
Considering arguments of both the counsel, perusing the material available on record, the points that need to be answered by this Court are as follows:
1. Whether failure to furnish documents relied on by the respondents and failure to mark the documents by examining competent witnesses is a material irregularity. If so, whether placing reliance on those documents to record finding is vitiated by an irregularity and violative of principles of natural justice?
2. Whether recording any finding without framing charge is an irregularity. If so, whether the order passed by the learned single Judge in W.P.No.16288 of 2004 dated 29.04.2016 be sustained?
P O I N T No.1 The core contention of the petitioner is that, the letters addressed by the respondents to Ranchi University and Andhra University, the replies received thereto from the Universities certifying that the CJ & MSM,J WA_1268_2017 9 certificates produced by the petitioner are fake, were neither supplied to this petitioner, nor marked as exhibits during enquiry by examining competent witness to record a finding based on those four documents, thereby, the petitioner is deprived an opportunity to refute the contentions of the appellants herein/respondents and disprove the letters addressed by the disciplinary authority and replies received from the Universities which is a mandatory procedure prescribed under the Regulations and failure to comply with the same is not only a serious irregularity of violation of Regulations, but also amounts to violation of principles of natural justice, since the petitioner is deprived of his right to defend himself being a delinquent employee in a subordinate position. This ground was accepted by the learned single Judge, but the same is now questioned in the writ appeal.
The learned single Judge rightly examined the scope of jurisdiction to issue Writ of Certiorari by placing reliance on the judgment of the Apex Court in Syed Yakoob vs. K.S. Radhakrishnan3; Swaran Singh vs. State of Punjab4; Union of India vs. P. Gunasekaran5, wherein the Apex Court held that, while exercising power under Article 226 of the Constitution of India, to issue Writ of Certiorari, when the findings are not based on any evidence and when there is violation of principles of natural justice in conducting proceedings, the Court can interfere and issue Writ of Certiorari. But, this finding is not disputed by the learned counsel for the appellants in the grounds of appeal and during arguments also. Therefore, we are in total agreement with the findings of 3 AIR 1964 SC 477 4 (1976) 2 SCC 868 5 (2015) 2 SCC 610 CJ & MSM,J WA_1268_2017 10 the learned single Judge with regard to scope and jurisdiction of this Court to issue Writ of Certiorari.
One of the major contentions of the learned counsel for the appellants herein Mr. Metta Chandra Sekhar is that, the jurisdiction of the High Court under Article 226 of the Constitution of India to interfere with the findings recorded by the disciplinary authority is limited and the Court cannot interfere with such fact finding recorded by the disciplinary authority.
Indisputably, the jurisdiction of the High Court under Article 226 in disciplinary matters is limited, but, the Court can interfere with the fact findings recorded by the Enquiry Officer if found not based on evidence or inadmissible evidence or where there is a serious irregularity in the procedural compliance or violation of principles of natural justice. This view is fortified by the judgment of the Hon'ble Apex Court in State of Andhra Pradesh & Ors. v. S. Sree Rama Rao6, a three Judge Bench of the Hon'ble Apex Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under:
"7. The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority 6 1963 AIR 1723 CJ & MSM,J WA_1268_2017 11 entrusted the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence."
In B.C. Chaturvedi v. Union of India & Ors7, again, a three Judge Bench of the Apex Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held that, Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that 7 1995 SCC (6) 749 CJ & MSM,J WA_1268_2017 12 evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to re- appreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel8, the Hon'ble Apex Court held that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued. 8 (1964) 4 SCR 781 CJ & MSM,J WA_1268_2017 13 In High Court of Judicature at Bombay through its Registrar v. Hashikant S. Patil & Anr9, the Hon'ble Apex Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising jurisdiction under Article 226 of the Constitution. It was held as under:
"The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."
In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya10, the Apex Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under: 9
(2000) 1 SCC 416 10 2020 ALL SCR 698 CJ & MSM,J WA_1268_2017 14 "It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."
The Apex Court in Union of India v. P. Gunasekaran11, held that while reappreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court laid down the parameters as to when the High Court shall not interfere in the disciplinary proceedings:
"13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience"
In view of catena of perspective pronouncements of Hon'ble Apex Court, it is clear that the High Court while exercising power under Article 226 of the Constitution of India cannot re-appreciate the evidence to come to a different conclusion, but when there is procedural violation or principles of natural justice or when the findings recorded by the Enquiry officer are ex facie perverse, i.e. not based on any evidence, the High Court may interfere with the proceedings issued by the disciplinary authority.11
(2015) 2 SCC 610 CJ & MSM,J WA_1268_2017 15 Keeping in view of the principles laid down in the above judgments, we would like to examine the issue based on the contention that there is serious irregularity in the procedure followed by the Enquiry Officer and violation of principles of natural justice.
It is an admitted fact that the letters addressed by the respondents to Ranchi University and Andhra University and reply received from the Universities, certifying that the certificates produced by the petitioner are not genuine, but fake and they were not supplied to the petitioner along with the charge memo enabling him to give suitable reply refuting the contentions, explaining the reasons for production of those documents, which is mandatory. The respondents also are under obligation to furnish the copies of those documents atleast in compliance of principles of natural justice.
A bare perusal of the enquiry report, it is clear that the copies of documents were not supplied, the appellants herein did not mark those four documents i.e. letters addressed by the respondents to the Universities and replies received from the Universities as exhibits and no witness was examined to prove the genuineness of the letters/certificates issued by Ranchi University and Andhra University. The learned singe Judge accepted various contentions in toto and set-aside the dismissal order dated 31.08.2004 passed by the first respondent.
The petitioner, as an employee by the date of conducting enquiry in appellant, is governed by Andhra Pradesh State Electricity Board Revised Conduct Regulations and Discipline & Appeal Regulations. Regulation CJ & MSM,J WA_1268_2017 16 No.10 (1) & 10(2) are relevant for deciding the present issue and they are extracted hereunder:
10. Procedure for imposing penalties:
1. No order Imposing on a member of a service a penalty specified in items (i), (ii) and (iii) (v) or (x) of regulation 5 shall be passed except after.
(a) The member of the service is informed in writing by the authority competent to impose the penalty of the proposal to take action in regard to him and of the allegations on which the action is proposed to be taken, and is given an opportunity to make any representations hemay wish to make to such authority, and
(b) Such representation, if any, is taken into consideration by the authority competent to impose the penalty.
(2) (a) In every case where it is proposed to impose on a member of a service any of the penalties specified in items (iv), (vi), (vii) and (viii) in Regulation 5. The authority competent to impose the penalty shall appoint an enquiry Officer, who shall be superior in rank to the person on whom it is proposed to impose the penalty, or shall itself hold an enquiry either SUO- MOTU or on a direction from a higher authority. In every such case the grounds on which it is propose to take action shall be reduced to the form of definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations on which charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case. Ho shall be required, within a reasonable time, to file a written statement of his defence and to state whether he desires an oral enquiry or to be heard in person or both. The person charged may, for the purpose of preparing his defence be permitted to inspect and take extracts from such official records as he may specify, provided that the enquiry officer may, for reasons to be recorded in writing refuse such permission, if, in his opinion, such records are not relevant for the purpose or it is against public interest to allow access thereto. On receipt of the statement of defence within the specified time or such further time as may have been given, an oral enquiry shall be held if such an enquiry is desired by the person charged or is decided upon by the enquiry officer or is directed by the competent authority. At that enquiry, oral evidence shall be heard as to such of the allegations as are not admitted and the persons charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have CJ & MSM,J WA_1268_2017 17 such witnesses called as he may wish, provided that the enquiry officer may, for special and sufficient reason to be recorded in writing, refuse to file, call a witness. After the oral enquiry is completed, the person charged shall be entitled to file, if he so desires, any further written statement of his defence. If no oral enquiry is held and the person charged desires to be heard in person, a personal hearing shall be given to him. The enquiry Officer shall, on completion of the enquiry or the personal hearing of the person charged or both, forward the proceedings of the enquiry to the authority competent to impose the penalty unless he is himself such an officer. The proceedings shall contain the charges framed against the person charged along with the grounds of charge, written statement filed in defence. If any, a sufficient record of the evidence adduced during the oral enquiry, a memorandum of the point urged by the person charged during the personal hearing. If any, a statement of the findings of the enquiry officer on the different charges and the grounds therefor.
Though, supply of documents along with the charge is not contemplated under the Regulation, still, it is the duty of the Disciplinary Authority to supply the documents to the delinquent officer on which it is relying on. In case, the documents which are the basis of charge and the witnesses proposed to be examined should be disclosed to the delinquent employee, atleast in compliance of principles of natural justice, since the delinquent employee is required to prepare his defence and submit his written statement either denying or admitting the documents. Otherwise, it amounts to keeping the delinquent employee totally in dark and producing documents and witnesses suddenly during enquiry is not a fair procedure.
A similar issue came up before Division Bench of High Court of Andhra Pradesh at Hyderabad in Member Secretary, Punishing Authority, APSEB, Vidyut Soudha v. G. Amrutaiah12, the then Hon'ble Chief Justice along with Hon'ble Justice N.V. Ramana, while 12 2001 (1) ALD 338 CJ & MSM,J WA_1268_2017 18 deciding similar issue relating to an Assistant Electrical Engineer whose services were terminated, where the learned counsel for APSEB contended that, even if the principles of natural justice are complied with, no prejudice is caused to the employee placing reliance on several judgments. But, the learned single Judge interfere with such finding recorded by the disciplinary authority. It is not in dispute that the disciplinary proceedings against a delinqunt employee have to be conducted in terms of the A.P. State Electricity Board Employees' Discipline and Appeal Regulations, 1970, as also the A.P.S.E. Board Revised Conduct Regulations, 1986, ('Conduct Regulations' for the sake of brevity) which is statutory in nature. Regulation 10 of the Conduct Regulations provides for the procedure for imposing penalties. A detailed provisions have been laid down therein as to the mode and manner in which a disciplinary proceeding shall be conducted. The appellants herein are bound to comply with the requirements laid down therein. It may be that in a given situation compliance of one or the other procedure may not be insisted upon, if it is found that there has been a substantial compliance. But, it is another thing to say that there shall be no compliance of the principles of natural justice. Principles of natural justice, as explained by the Apex Court in Kumaon Mandal Vikas Nigam Ltd v. Girja Shankar Pant13, postulates that at every stage requirements thereof should be complied with. By reason of the report of the enquiry officer, the delinquent employee derived a right of being considered for exoneration from the charges at the hands of the disciplinary authority. The disciplinary authority, undoubtedly, is entitled to differ with such findings, but, before it arrives at a conclusion 13 AIR 2001 SC 24 CJ & MSM,J WA_1268_2017 19 that the findings arrived at by the enquiry officer are not correct and/or perverse, an opportunity of hearing must be given to the delinquent employee. There cannot be any doubt whatsoever that if at that stage the principles of natural justice are not complied with, the delinquent employee will suffer a great prejudice. This aspect of the matter is squarely covered by a decision of the Apex Court in Punjab National Bank's case (supra) wherein it had been categorically held:
"18.....1t is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not to be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar's case (1994 AIR SCW 1050) (supra).
19.The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer".
Finally, in para No.15, the Division Bench concluded that, Doctrine of Prejudice as adumbrated by Supreme Court in several decisions may be invoked. Having regard to the fact that, in the facts of the case that CJ & MSM,J WA_1268_2017 20 there has been flagrant violation of the principles of natural justice , the Doctrine cannot be applied and dismissed the appeal. In the present case also, the writ petitioner pointed out several procedural violations including principles of natural stage, which will be discussed at appropriate stage. The principle laid down in the above judgment will directly apply to the present facts of the case.
The writ petitioner was an employee working under the control of the first appellant and when he is facing an enquiry, he must be dealt with fairly, by affording an opportunity at every stage. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States14, Justice Jackson, a Judge of the United States Supreme Court has said "procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."
The affect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows:
"If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is 14 345 US 206 (1953) CJ & MSM,J WA_1268_2017 21 obviously very strong; the maxim that justice must be seen to be done can readily be invoked."
From the principles laid down by Justice Jackson in Shaughnessy v. United States (referred supra) and Judicial Review of Administrative Action by De Smith, Woolf and Jowell (referred supra), it is clear that a fair opportunity be afforded to the delinquent employee at every stage. Failure to comply would render the order illegal and irregular, since, no opportunity was afforded to the delinquent employee - the writ petitioner who was facing an enquiry and it is violative of principles of natural justice.
Time and again, the Court has considered similar issue in catena of perspective pronouncements. In State of Uttar Pradesh vs. Saroj Kumar Sinha15, then Apex Court held that, an inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the un-rebutted evidence is sufficient to hold that the charges are proved. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which 15 (2010) 2 SCC 772 CJ & MSM,J WA_1268_2017 22 may culminate in imposition of punishment including dismissal/removal from service.
Similar view was taken by the Apex Court in Roop Singh Negi vs. Punjab National Bank16, wherein it was held that, Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."
It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. (vide Meenglas Tea Estate vs. The Workmen17). Even if the employee refuses to participate in the enquiry the employer cannot 16 (2009) 2 SCC 570 17 AIR 1963 SC 1719 CJ & MSM,J WA_1268_2017 23 straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led. (vide Imperial Tobacco Co. Ltd. vs. Its Workmen18).
Turning to the facts of the present case, the very basis for initiating enquiry for the alleged misconduct of the petitioner is, letters addressed by the respondents to Andhra University and Ranchi University and the replies received from the Universities, certifying that the certificates produced by the petitioner are fake and not genuine, since the charge indicates that the petitioner produced two certificates to secure promotion. But, copies of those documents were not furnished to the writ petitioner along with the charge memo, enabling him to deny and to set up his defence in the enquiry by submitting his explanation. The failure of the respondents/appellants herein to furnish copies of those documents and witness proposed to be examined to prove those documents enabling this petitioner to give explanation to such allegation is a serious illegality and violative of principles of natural justice and that, it is a total unfairness on the part of the respondents/appellants herein, since the petitioner was deprived of an opportunity to disprove the documents.
At the same time, a bare perusal of enquiry report is demonstrably proved that no oral evidence has been led by the department to prove those documents by examining concerned witness who can speak about alleged fake certificates. When a major punishment is proposed to be passed the department has to prove the charges against the 18 AIR 1962 SC 1348 CJ & MSM,J WA_1268_2017 24 delinquent/employee by examining the witnesses and by documentary evidence. (vide Sohan Lal v. U.P. Cooperative Federation19) In the present case also, the respondents/appellants herein did not examine any witness to prove the documents, copies of which are not supplied to the petitioner and not even marked as exhibits before the Enquiry Officer to record a finding based on those documents. Hence, such finding is vitiated by an irregularity.
In Kashinath Dikshita vs. Union of India20, the Apex Court had clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a Government servant. In that case the enquiry proceedings had been challenged on the ground that non supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at a preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows:
"When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross- examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is 19 Writ-A No.43331 of 2000 dated 11.01.2013 20 (1986) 3 SCC page 229 CJ & MSM,J WA_1268_2017 25 difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: "What is the harm in making available the material?" and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."
The Apex Court in State of Uttar Pradesh vs. Saroj Kumar Sinha (referred supra), considered the scope of interference of this Court in departmental enquiry and the necessity to supply copies of the documents relied on. An identical question that came up for consideration before the Apex Court was non-disclosure of documents having a potential to cause prejudice to a government servant, where the Supreme Court held that, non-disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant.
In the present case also, the documents were not supplied to the petitioner and no witness were cited in the charge memo and those documents i.e. letters addressed by the respondents to the Universities and reply received from the Universities are having potential to cause prejudice to the petitioner to rebut the charges.
CJ & MSM,J WA_1268_2017 26 The aforesaid proposition of law has been reiterated in the case of Trilok Nath vs. Union of India21 wherein, it was held that non- supply of the documents amounted to denial of reasonable opportunity. It was held as follows:
"Had he decided to do so, the document would have been useful to the appellant for cross- examining the witnesses who deposed against him. Again had the copies of the documents been furnished to the appellant he might, after perusing them, have exercised his right under the rule and asked for an oral inquiry to be held. Therefore, in our view the failure of the Inquiry Officer to furnish the appellant with copies of the documents such as the FIR and the statements recorded at Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry."
(emphasis supplied) The proposition of law that a government employee facing a department enquiry is entitled to all the relevant statement, documents and other materials to enable him to have a reasonable opportunity to defend himself in the department enquiry against the charges is too well established to need any further reiteration. Nevertheless the law stated by the Apex Court in State of Punjab vs. Bhagat Ram22 is as follows:
It is unjust and unfair to deny the government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the government servant. A synopsis does not satisfy the requirements of giving the government servant a reasonable opportunity of showing cause against the action proposed to be taken."
(emphasis supplied) From the law laid down by the Apex Court in the judgments referred supra, non-supply of documents to the petitioner and non-
marking the documents amounts to denial of procedural prescription and also principles of natural justice.21
1967 SLR 759 (SC) 22 (1975) 1 SCC 155 CJ & MSM,J WA_1268_2017 27 When an Enquiry Officer recorded a perverse finding i.e. a finding without any evidence or recording finding based on inadmissible evidence, though Evidence Act is not applicable, still, the documents relied on by the disciplinary authority shall be marked as exhibits by examining competent witness after compliance of necessary procedure of supplying copies to the delinquent, when such procedure is not complied, without supplying copies, removal of an employee based on perverse finding recorded by the Enquiry Officer is illegal. In the present case, after completion of enquiry, the second appellant herein recorded a finding, but based on documents which were not supplied, marked as exhibits by examination of any competent witness, such recording of finding by the Enquiry Officer is a perversity.
Based on the principles laid down in the judgments referred supra, failure to furnish copies of the documents i.e. letters addressed by the respondents to Andhra University and Ranchi University respectively and reply received from the Universities, non-marking of those documents during enquiry and by examining any competent witness to prove its genuineness is fatal to the enquiry and that itself is suffice to conclude that this petitioner was deprived of fair opportunity and fair treatment in the disciplinary proceedings. Without insisting proof of the letters addressed by the respondents to the Universities and reply received from the Universities, the Enquiry Officer recorded perverse findings i.e. findings without any evidence, since those documents are the very basis for framing charge against the petitioner. When the petitioner was kept totally in dark without affording any opportunity to give explanation, recording such finding by the Enquiry Officer is a serious irregularity.
CJ & MSM,J WA_1268_2017 28 Hence, the finding recorded by the learned single Judge in W.P.No.16288 of 2004 dated 29.04.2016 cannot be interfered by this Court, while rejecting the contention of the learned counsel for the appellants herein that producing two certificates from two different universities is sufficient, since, period of study is different and the petitioner gave an explanation to that effect in the writ affidavit itself. Accordingly, the point is answered in favour of the respondent herein/writ petitioner and against the appellants herein/respondents.
P O I N T No.2:
One of the contentions raised by the learned counsel for the petitioner is that, charge was framed against the petitioner on the ground that the writ petitioner committed serious irregularity, failed to maintain integrity, acted dishonestly, exhibited misconduct and violated Regulation 4 (xxxix) (XXIV) of APSEB Employees Revised Conduct Regulations and Regulation 6 (XXX) (V) of APSEB Employees Disciplinary Authority Regulations as adopted by APEPDCL, as the delinquent has cheated the department and "got employment by producing bogus certificate". The reason for framing charge against the petitioner is that he produced bogus certificate to get appointment, whereas the finding of the Enquiry Officer is totally different. Therefore, for brevity, the charge against the petitioner and findings recorded by the Enquiry Officer are extracted hereunder:
CHARGE FRAMED FINDING RECORDED The Junior Accounts Officer has got Thus the delinquent has cheated the employment by producing bogus department twice by producing the Provisional Certificate of Graduation fake and forged B.Com Degree in Commerce Certificate of Ranchi certificates of Andhra University and University dt.10.11.03 as per Ranchi University. The delinquent service register. When he was asked acquired the benefit of promotion as CJ & MSM,J WA_1268_2017 29 to produce the original certificate, Junior Accounts Officer in the he produced Xerox copy of the department by virtue of the fake B.Com degree dt.9.7.92 of Andhra certificate of Ranchi University University when it was referred for produced by him. genuineness to the Controller of Examinations Andhra University the certificate was confirmed as not genuine and fake. The delinquent has cheated the department and got employment by producing bogus certificate.
Even though the delinquent did not Thus, the Junior Accounts Officer get employment by producing bogus has committed serious irregularity, certificates in the department as failed to maintain integrity, acted stated in charge, he acquired the dishonestly, exhibited misconduct promotion to the post of Junior and violated Regulation 4 (xxxix) Accounts Officer by producing bogus (XXIV) of APSEB Employees Revised educational qualification certificates Conduct Regulations and duly cheating the department.
Regulation 6 (XXX) (V) of APSEB Employees Disciplinary Authority Regulations as adopted by APEPDCL.
The charge framed against the writ petitioner does not disclose the details like documents produced by this writ petitioner to secure employment, date of production of documents before his appointment.
Thus, the charge is vague. As per charge, the writ petitioner produced certificates issued by Ranchi University and Andhra University to secure employment, but he was appointed as Typist in the year 1971 and the certificates alleged produced by the writ petitioner relates to the year 1993 and 2000, thereby the question of securing employment by producing fake certificates is false ex facie. The charge was framed wrongly without conveying the specific allegation for which the appellants proposed to conduct enquiry against the writ petitioner. The enquiry was conducted and found the petitioner guilty for obtaining promotion by producing fake certificates as noted in the second column of the table. Thus, the charge and findings recorded are totally distinct.
In such case, if the enquiring authority is of the opinion that the enquiry CJ & MSM,J WA_1268_2017 30 established any other charge different from the original charge, it may record its finding on such article of charge, provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
As discussed above, the charge framed by the disciplinary authority is vague nor disclosing the details of relevant witnesses to be examined and documents relied on to substantiate the contention of the disciplinary authority. The basis of charge was not disclosed in the charge memo served on the writ petitioner. The learned single Judge held that the charge is not in accordance with the procedure in Paragraph No.6 of the order, where the learned single Judge discussed about effect of irregular charge relying on Viswanath Mishra vs. U.P. Public Services Tribunal23 to conclude that, the finding recorded by the Enquiry Officer is without any charge and that, the writ petitioner was not informed about finding him guilty without affording any reasonable opportunity of defending himself against such article of charge. On this ground also, the order of the learned single Judge is liable to be affirmed.
In Sri Bishnu Prasad v. Union of India24, the Calcutta High Court also held to the same effect. Whereas, in Aswarthanarayana G.V. vs. Central Bank of India, by Chairman, Bombay25, the Karnataka High Court examined the vagueness in the charge and concluded that the vagueness in the charge is not excused on the plea that the employee 23 1995 (II) SLR 708 24 1991 (3) SLR 751 25 2004 (I) LLJ 36 CJ & MSM,J WA_1268_2017 31 concerned should be deemed to have known the facts correctly. It should not be left to the delinquent official to find out or imagine wheat the charges against him are and it is for the employer to frame specific charges with full particulars, following the principle laid down in Transport Commissioner vs. Radha Krishna Moorthy26. The learned single Judge after considering entire law and failure to afford opportunity, when the petitioner was found guilty by the Enquiry Officer for other Articles of Charge, is an illegality and serious violation of procedure, principles of natural justice, thereby the Court can interfere with such findings recorded by the Enquiry Officer by exercising power under Article 226 of the Constitution of India.
It is the case of the petitioner and respondents from the beginning that the petitioner joined the service as a Typist in the year 1971 and by virtue of his seniority promoted as L.D.C in 1992. In order to get promotion as Junior Accounts Officer, he must possess graduation in Commerce or Accountancy High Grade Examination. Though the petitioner prosecuted B.Com course through private study center during the years 1989-1991 and appeared for the examination conducted by Andhra University, he did not receive any certificate. As the promotions were contemplated by the Board, the petitioner also appeared for B.Com examination conducted by Ranchi University through another Study Centre in February 1993, the petitioner obtained Provisional Certificate from Ranchi University on 10.11.1993. In the year 2000, the petitioner submitted a copy of B.Com Degree Certificate issued by Andhra University requesting the respondents to make appropriate entries in his 26 (1995) 1 SCC 332 CJ & MSM,J WA_1268_2017 32 Service Register and got promotion to the post of Junior Accounts Officer. Thereupon, the respondents entertained a doubt about prosecution of B.Com Degree through private study and allegedly addressed letters to Andhra University and Ranchi University about the genuineness of the certificates and found that those certificates are fake.
So, obtaining employment by the petitioner producing fake certificates does not arise in the present case, since he was not inducted into the department on the basis of those certificates. At most, the charge should have been framed as to obtaining promotion as Junior Accounts Officer by producing fake certificate. But, that was not the charge. When the charge was not properly framed, recording a finding by the Enquiry Officer contrary to the charge is an illegality.
In Kuldeep Singh vs. Commissioner of Police and others27, the Apex Court held that, it is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review is available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man 27 (1999) 2 SCC 10 CJ & MSM,J WA_1268_2017 33 or the findings were perverse or made at the dictate of the superior authority.
The burden of proof to establish the charge rested with the department. In order to prove the charge it was obliged to prove that the concerned persons had loans outstanding against them and the petitioner knew about it but made false notings that there were no loans outstanding against them. The department having brought the petitioner before the Enquiring Officer for trial, it must rely on its own strength for success of the charge and not on the weakness or failure of proof of innocence of the petitioner. When the burden of proof lies on the department and it does not discharge it by adducing evidence, the charge must fail. From the discussion made by the Enquiring Officer, as extracted above, it would appear that instead of placing the burden of proof to establish the charge on the department, he threw it on the petitioner. He was apparently toying with the impression that the petitioner was to establish his denial of charge and on his failure to do so, the charge should be taken to have been proved. This illegal casting of burden of proof on the petitioner has resulted in arriving at wrong conclusion when the Enquiring Officer held that in absence of evidence in support of defence the charge is proved. The Enquiring Officer having proceeded on a wrong hypothesis which is not permissible in law, the finding of guilt reached by him cannot be supported and is liable to be quashed. (vide Ananda Chandra Prusty vs. Orissa Mining Corporation Limited28) 28 1996 LAB I.C 2595 CJ & MSM,J WA_1268_2017 34 In view of the law declared by the Apex Court in the judgments referred above, the learned single Judge concluded that, the findings of the Enquiry Officer are illegal and recorded that, such findings are without any material and it is vitiated by an irregularity. Therefore, on this ground alone, writ petition was liable to be allowed and accordingly, the learned single Judge allowed the writ petition, while rejecting the contention of the respondents/appellants herein.
One of the contentions of the learned counsel for the appellants herein is that, direction given by the learned single Judge to pay all the monetary benefits to the petitioner as if he continued in service with effect from 12.04.2003 till the date of his retirement, including his retiral benefits is an illegality.
In Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (referred supra), the Supreme Court laid down certain guidelines for grant of reinstatement with continuity of service and back wages in case of wrongful termination of service and they are as follows:
„38. The propositions which can be culled out from the aforementioned judgments are:
38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she CJ & MSM,J WA_1268_2017 35 was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4 The cases in which the Labour Court/Industrial Tribunal exercises power Under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer‟s obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-àvis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame.
Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
CJ & MSM,J WA_1268_2017 36 38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal {(2007) 2 SCC 433} that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.‟ (emphasis supplied) In the present case, the petitioner was dismissed from service on the illegal findings of the Enquiry Officer vide dismissal order dated 31.08.2004 and the same was set-aside by the learned single Judge vide order in W.P.No.16288 of 2004 dated 29.04.2016. Dismissal or removal of the writ petitioner from service is only on account of illegality committed by the Enquiry Officer in completing the enquiry and recording findings thereto, which the learned single Judge had set-aside vide order dated 29.04.2016. When the petitioner was out of employment on account of illegalities committed by the appellants herein, he is entitled to claim back wages, when he was not gainfully employed, apart from the burden of proof that the delinquent was gainfully employed during the period of suspension, but failed to discharge the burden. The learned single Judge while ordering reinstatement of this petitioner into service with effect from 12.04.2003 till the date of his retirement, rightly ordered payment of back wages, including his retiral benefits. For the mistake of Enquiry officer, the petitioner was out of service and he did not render any service. Principle of no work - no pay cannot be applied to the present facts of the case, since the petitioner did not attend to work on account of illegal order of suspension and dismissal from service, passed by the appellants herein. Therefore, the learned single Judge rightly ordered all monetary benefits to the petitioner, including his retiral benefits; thereby, the order of the learned single Judge does not warrant interference of this Court in the CJ & MSM,J WA_1268_2017 37 intra court appeal, as we find no merit in the contention of the respondents/appellants herein. Accordingly, the point is answered against the appellants herein and in favour of the respondent/writ petitioner.
In view of our foregoing discussion, we find no merit in the writ appeal and it deserves to be dismissed.
In the result, writ appeal is dismissed, confirming the order passed by the learned single Judge in W.P.No.16288 of 2004 dated 29.04.2016. No costs.
Consequently, miscellaneous petitions pending, if any, shall also stand closed.
PRASHANT KUMAR MISHRA, CJ M. SATYANARAYANA MURTHY, J Sp