HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. 1. Special Appeal No. 305 of 2007 Lal Bahadur Singh Vs. U.P. State Roadways Transport Corporation and others. Hon'ble Pradeep Kant, J.
Hon'ble Devendra Kumar Upadhyaya, J.
Heard learned counsel for the appellant Sri R.P. Singh and Sri Ritesh Kumar Singh for U.P.S.R.T.C.
Under challenge is the order passed by the learned Single Judge dated 22.2.07, by means of which, the writ petition preferred by the appellant, challenging his order of removal from service has been virtually dismissed, though it stands allowed in part, under which direction, the appellant has been directed to be paid arrears of salary for the period commencing from 13.10.03 to 12.2.04. The learned Single Judge has described the order as order of dismissal from service, though in fact, it is an order of removal from service.
In nutshell, the facts of the case are that the appellant while working as Bus Conductor in U.P.S.R.T.C. was removed from service on 4.3.1983. He was suspended for holding the departmental enquiry, but later on, the suspension order was revoked and he was allowed to resume duties, and while working as such, an order of removing him from service was passed on 4.3.1983.
The appellant challenged the aforesaid order of removal from service by filing Writ Petition No. 8975 (SS) of 1992, which was allowed and liberty was given to U.P.S.R.T.C. to hold the enquiry afresh from the stage of submission of reply to the charge sheet, as it was found that the enquiry was not held in accordance with rules. The operative portion of the order passed by the learned Single Judge reads as under:
"In the result, the writ petition is dismissed in part. The impugned order of removal from service of the petitioner dated 4.4.1983 passed by the opposite party no. is hereby quashed. However, it will be open for the opposite parties to make inquiry afresh after stage of submission of the reply to the charge-sheet in accordance with law. In case no fresh inquiry is conducted against the petitioner within a period of three months from the date of production of certified copy of this order, the petitioner shall be deemed to have been reinstated in service with all consequential benefits. But in case, the inquiry as observed is initiated against him, the same shall be conducted in accordance with law and the parties shall abide by the decision of the said inquiry."
After the decision of the aforesaid writ petition, fresh enquiry was conducted from the stage of submission of reply to the charge sheet and the impugned order dated 12.12.04 was passed, removing the appellant from service. This order again became the subject matter of challenge in the present writ petition, against which order, this special appeal has been filed.
From perusal of the order impugned and the arguments advanced by the parties' counsel, it can be easily inferred that the sole question which was urged before the learned Single Judge was that the entire enquiry proceedings taken afresh after the decision in the earlier writ petition were illegal and void, as the appellant was not reinstated into service and the enquiry continued without reinstatement, as per the directives issued by the learned Single Judge in the earlier writ petition.
It is an admitted fact that the appellant was not reinstated into service after the judgment was passed in the earlier writ petition and that the enquiry was conducted and concluded, treating him as an ex-employee of the U.P.S.R.T.C.
The fact that the appellant was treated as an ex-employee is also evident from the impugned order of removal from service where a specific recital has been made against the name, Lal Bahadur Singh, as Bhootpoorva Parichalak (Ex-Conductor).
The learned Single Judge though accepted the plea of the appellant that in view of the directives issued by the High Court in the earlier writ petition, it was obligatory upon the U.P.S.R.T.C. to reinstate the appellant into service before proceeding with the enquiry, but refused to grant relief by observing that the enquiry has already been held and in view of Clause (5) of Regulation 67, the appellant would be deemed to have been suspended and accordingly, no illegality can be said to have been committed. However, the learned Single Judge directed that the appellant would be entitled for salary for the period commencing from 13.10.03 to 12.2.04 i.e. from the date of the order passed in the earlier writ petition, till the passing of the present order of removal.
The learned Single Judge having come to the conclusion that illegality was committed by the U.P.S.R.T.C. in not reinstating the appellant into service, the order of removal from service ought to have been set aside, as the very initiation of fresh disciplinary proceedings was illegal and bad in law.
Any order of punishment based on an enquiry, which has been illegally initiated or which is void cannot be saved. Simply because there is a provision of deemed suspension under Clause (5) of Regulation 67 of the Regulations known as 'U.P. State Road Transport Corporation Employees (Other than Officers) Service Regulations, 1981' that would not give a defense to U.P.S.R.T.C. to cover the default.
In the case of Chairman-cum-M.D. Coal India Ltd. and others vs. Ananta Saha and others, 2011 (4) ESC 351 (SC), the apex court observed that if there had been no proper initiation of disciplinary proceedings after the first round of litigation, all consequential proceedings stood vitiated. Their Lordships also observed that on facts, a fresh enquiry was to be conducted and if the appellant had chosen to hold a fresh enquiry, they would be bound to reinstate the delinquent and put him under suspension and the delinquent would be entitled for subsistence allowances, till the conclusion of enquiry.
Nothing of this sort was done in the instant case.
Regulation 67 (5) reads as under:
"67 (5)Where a penalty of dismissal or removal from service imposed upon an employee is set aside or declared or rendered void in consequence of or by a decision of a court of law and the appointing authority, on a consideration of the circumstance of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether to allegations remain in their original form or are clarified or their particulars better specified or any part thereof of a minor nature omitted-
(a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the appointing authority, be deemed to have continued in force on and from the date of the original order of dismissal or removal;
(b) if he was not under such suspension, he shall, if so directed by the appointing authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original order of dismissal or removal."
It envisages two contingencies with respect to suspension as given in the aforesaid sub-clause (a) and (b).
The matter in issue is not covered by sub-clause (a), as the appellant was not under suspension immediately before penalty was awarded to him. So far sub-clause (b) is concerned, that would also not be of any assistance to U.P.S.R.T.C. for the reason that the appointing authority did not issue any such direction nor pass any order for suspending the appellant during the course of enquiry.
Thus, Clause (5) of Regulation 67 was not at all attracted in the instant case.
The departmental enquiry could be conducted only against an employee who is in service, unless, of course, there is a provision under the rules permitting an enquiry against the retired or ex-employee. In the instant case, the U.P.S.R.T.C. also proceeded on the assumption that it is dealing with a ex-employee and not with an existing employee. There is no such power to hold the enquiry against an ex-employee in the service regulations.
The learned Single Judge in his order, directed that in case no fresh enquiry is conducted against the appellant within a period of three months from the date of production of certified copy of this order, the appellant shall be deemed to have been reinstated into service with all consequential benefits. But in case, the inquiry as observed is initiated against him, the same shall be conducted in accordance with law and the parties shall abide by the decision of the said inquiry. This obviously means that in case no enquiry was conducted within the time provided, the appellant would be deemed to have been reinstated into service with all consequential benefits, but in case the enquiry was held as directed, then he would be reinstated into service, but consequential benefits would depend upon the final outcome of the enquiry.
The legal position thus, is that on quashing of the order of removal from service, liberty to hold an enquiry afresh from a particular stage could have been availed of, only after the appellant was reinstated into service and may be that after reinstatement, the appointing authority could have passed an order of suspension and till the enquiry was concluded, he could have remained under suspension. But in any case, without reinstating the appellant, enquiry could not have been conducted afresh.
For the reasons aforesaid, the order of removal from service of the appellant dated 12.2.04 is liable to be set aside, which is hereby set aside and the order passed by the learned Single Judge dated 22.2.07 is also set aside. As a consequence of the aforesaid order, we direct that the appellant shall be reinstated into service forthwith, but the enquiry shall be conducted afresh from the stage of submission of reply to the charge sheet, which shall be done within a maximum period of three months. The appellant shall cooperate in the enquiry. The appellant shall be paid regular salary from the date of his reinstatement, but the arrears of salary for the period commencing from date of passing of the original removal order i.e. 4.3.1983 till the date of reinstatement shall abide the result of fresh enquiry.
The award of salary for the period aforesaid by the learned Single Judge, without setting aside the order of removal from service, would not validate the order of removal from service nor such an order is covered by any provisions of the service regulations.
The special appeal is allowed. No order as to costs.
Dated: 09.12.2011 Sachin