Uco Bank vs Shri Ashok Kumar Mongia
2000 Latest Caselaw 167 Del

ORDER

A.K. Sikri, J.

1. Respondent No. 1 (petitioner in CW. 1982/87) states that his counsel is not well. At his request, Mr. M.R. Bhardwaj his counsel is discharged from the case and he is allowed to argue the case himself.

2. Respondent (petitioner in the writ petition) had filed Civil Writ Petition No. 1892/97 and after hearing, it was disposed of by me vide judgment dated August 31, 1999. The enquiry conducted against the petitioner and impugned order dated 30th May, 1985 imposing the penalty of dismissal upon the petitioner as well as order dated 21.7.1985 of the appellate authority was set aside mainly on two grounds namely, (i) Area Manager who acted as disciplinary authority was not competent to act as disciplinary authority; and (ii) Shri R.K. Somaiya who was appointed as enquiry officer should not have acted as enquiry officer as he had contacted the prelimi-nary investigation and there was 'real likelihood of bias' or 'reasonable suspicion of bias'.

3. While setting aside the enquiry and punishment on the aforesaid grounds, direction was given to the review petitioner to reinstate the respondent in service with consequential benefits and 50 % of arrears of salary and admissible allowances.

4. Review petitioner filed appeal against the aforesaid judgment being LPA No. 411/99 and while disposing of the said LPA Division Bench passed the following order :-

"Mr. Rajiv Nayyar Sr. Advocate states that in view of the judgment of the Supreme Court in State of Punjab & Ors. Vs. Dr. Harbhajan Singh Greasy , he would like to move an application before the learned Single Judge, therefore, prays that appeal be allowed to be withdrawn with liberty to approach the learned Single Judge in the light of the above mentioned judgment. Request allowed. The appeal is dismissed as withdrawn.

5. In view of the aforesaid permission granted by the division bench review petitioner has filed the instant review petition.

6. The judgment quashing the enquiry on the ground mentioned hereinabove is not challenged. However, it is contended by Mr. Rajiv Nayyar, learned senior counsel for the review petitioner that while setting aside the enquiry, this court should have given permission to the review petitioner to hold fresh enquiry instead of granting reinstatement with consequential benefits or passing the direction of payment of 50% of back wages. Reliance is placed on the following judgments of the Apex Court :_ (i) State of Punjab & Ors. Vs. Harbhajan Singh Greasy of Orissa and Others Vs. Dinabandhu Beheta and Others .

7. In both the cases Supreme Court had set aside the direction of the subordinate court where reinstatement and back wages was given after setting aside the enquiry. It was further observed that the necessary consequential orders would depend on the outcome of the enquiry and final result of the enquiry will determine the relief, if any, to which the concerned employee would be entitled even in respect of the payment, if any, for the entire period. Relevant portion of the judgment of Supreme Court in the case of Dinabandhu Beheta (supra) reads as follows :-

"It is clear that the above defect resulting in the quashing of the dismissal order does not deprive the appellant of the authority to hold an inquiry into the alleged misconduct and to take necessary consequential actions depending on the outcome of that inquiry. This aspect appears to have been overlooked by the Tribunal while directing reinstatement with back wages. It is, therefore, necessary to set aside this part of the direction given by the Tribunal. While setting aside this further direction of the Tribunal, we make it clear that it is open to the appellant to hold an inquiry into the allegations of misconduct and to pass the necessary consequential orders depending on the outcome of that inquiry."

8. To the same effect is the observation of Supreme Court in the other case cited by the Review Petitioner.

9. It is contended by the respondent that this Court should not interfere with the judgment dated August 31, 1999 and review petition filed by the petitioner should be dismissed inasmuch as there is no error apparent on the fact of record and the judgment was given after considering all the aspects. In support of his submission he has relied upon the following judgment : -

(i) Chander Kanta Vs. Sheikh Habib .

(ii) Meera Bhanja Vs. Nirmala Kumari Chaudhary .

(iii) Norther Indian Caterers Ltd. Vs. Lt. Governor of Delhi .

10. I have perused the aforesaid judgments which are not applicable to the facts and circumstances of this case. No doubt it is laid down in these judgments that the order should be reviewed if there is error apparent on the face of the record. The judgments cited by the review petitioners would clearly show that error crept in, in giving the direction of reinstatement with consequential benefits including 50% of back wages. Admittedly, the enquiry was set aside on technical grounds mentioned above and there is no observation or any finding given on the merits of the charges levelled against the respondent No. 1 in the charge-sheet served upon him by the review petitioner. Infact the aspect as to whether review petitioner-bank should be given opportunity to hold enquiry afresh or not is not dealt with in the said judgment though it was argued. After holding that the enquiry conducted against the respondent was bad in law, direction were issued to straight away reinstate him. Thus, there is an omission in the order in not dealing with this aspect. Therefore, following the aforesaid judgments, it would always be open to the review petitioner-bank to hold the enquiry afresh.

11. Accordingly the petition is allowed. Following directions contained in judgment dated 31st August, 1999 is hereby deleted :

"Resultantly petitioner is entitled to reinstatement in service, with consequential benefits. However, the arrears of salary and admissible allowances are limited to 50%.

Writ petition stands disposed of in the above terms. There shall, however, be no orders as to costs."

12. The above-mentioned directions is substituted with the following direction :

"Bank is permitted to hold fresh enquiry in accordance with the relevant rules against the respondent as per charge-sheet already served upon the respondent. The consequential benefits including the salary and allowances etc. for the intervening period would depend upon the outcome of the said enquiry. However, the bank shall pay a cost of Rs. 10,000/- to the petitioner."

13. Accordingly, the review petition is allowed on above terms. Parties to bear their own costs in the Review Petition.