Delhi High Court

Const. Seth Pal Singh vs Uoi & Ors. on 10 November, 2010

Author: Gita Mittal

56
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +   W.P.(C)No.13351/2005

                            Date of Decision : 10th November, 2010

%

      CONST. SETH PAL SINGH       ..... Petitioner
                    Through : Mr. Rajesh K. Khanna,
                              Sr.Adv. with Mr. Virender
                              Singh, Ms. Neha Garg and
                              Ms. Seema Rao, Advs.
               versus

      UOI & ORS.                    ..... Respondents
                           Through: Mr. S.P. Sharma, Adv. with
                                     Dr.Ashwani Bhardwaj, Adv.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?               YES

3.      Whether the judgment should be                       YES
        reported in the Digest?

GITA MITTAL, J. (Oral)

1. The writ petitioner has assailed the order dated 15th

January, 2001 passed by the respondent No.5 awarding the

major punishment of removal from the service; the order dated

17th May, 2001 passed by the Additional Chief Security

Commissioner, Railway Protection Force sustaining the said

order as well as the order dated 24 th May, 2002 whereby the

respondent No.3, while upholding the findings of guilt against

the petitioner, has converted the punishment of removal from

service into compulsory retirement.

2. So far as the charges on which the inquiry was proposed,

the same were informed to the petitioner by the memo dated

1st June, 1999. The same deserve to be usefully extracted and

read as follows:-

"CHARGE SHEET Under Section (1) i. of the RPF Act, 1957 read with 153 of RPF Rules, 1987

NORTHERN RAILWAY - RAILWAY PROTECTION FORCE

MEMORANDUM

Shri Seth Pal Singh s/o Sh. Sahib Singh, Const./Railway Protection Force/Delhi (name and designation of the member of the Force) is hereby informed that it is proposed to hold an enquiry against under Rule 153 of Railway Protection Force Rules, 1987. The allegations on which the enquiry is proposed to be held are set out in the enclosed statement of allegations and the charges framed on the said allegations and the charges are specified in the enclosed statement of charges. A list of documents by which and a list of witnesses by whom the articles of charges are proposed to be sustained are enclosed.

Shri V.K. Chaturvedi, IPF/SCNL is nominates as inquiry officer for conducting De-navo enquiry.

The enquiry is fixed on 7.6.99 at SCNL/P.K. Road at 10.00 hours. You should attend the enquiry, failing which the enquiry will be conducted ex-parte.

Shri Seth Pal Singh, Const/Railway Protection Force Delhi (M) while presenting himself before the enquiry officer may;

(a) Furnish names and addressed of witnesses, if any whom he wishes to call in support of his defence.

(b) Furnish the list of documents, if any, which he wishes to produce in support of his defence.

(c) Shri Seth Pal Singh, Const/Railway Protection Force, Delhi (M), is further informed for the purpose of preparing his defence he wishes to inspect and take extracts from any official records, he should

furnish a list of such records to the enquiry officer not lake to _____ (indicate allowing at-least clear one week) so that arrangements may be made to vide facilities for the purpose. He should, however, note that if in the opinion of the enquiry officer records are not relevant for the purpose, or it is against the public interest allow him access to such records, he will not be permitted to inspect or take extracts from such records.

5. The attention of Shri Seth Pal Singh Const. Delhi, in invited to Rule 113 and 145 of RPF Rules, 1987 under which members of the Force are forbidden from bringing or attempting to bring any political or other outside influence to bear upon any superior authority to further his interest in respect of matter pertaining to his service under the Government. If any representation is received on his behalf from any other person in respect of any matter dealt with in these proceedings, it will be presumed that Shri Seth Pal Singh, Const. Delhi (M) is aware of such a representation and that it has been made at his instance and action will be taken against him for violation of the said Rules.

6. Shri. Seth Pal Singh, Const. Delhi (M) should acknowledge receipt of this charge sheet on the date, it is presented to him by giving his signatures thumb impression on the acknowledgement form."

3. The petitioner was serving as a Constable with the

Railway Protection Force since 1987. On 1st June, 1999, the

Railway Protection Force had issued a memorandum to the

petitioner alleging that he had demanded and accepted the

illegal gratification of `200/- from a decoy sent by its vigilance

team on 28th February, 1998. The petitioner was also informed

that a disciplinary inquiry was proposed to be held against him

with regard to the said allegations.

4. It is undisputed that one Sh. M.S. Farooqi was appointed

as an inquiry officer. In the course of this inquiry, evidence was

recorded by the inquiry officer, who after consideration of the

matter submitted a report absolving the petitioner of the

charges and holding him not guilty thereof. This inquiry report

was placed before Senior Security Commissioner of the Railway

Protection Force who was the competent disciplinary authority

of the petitioner. This authority was of the view that inquiry

officer had failed to examine certain witnesses and had not

brought copy of the complaint from the vigilance team on

record. By an order dated 31st May, 1999, it was held that the

inquiry was not properly conducted by the inquiry officer. For

this reason, the disciplinary authority directed a de novo

inquiry into the instant case and nominated Sh. V.K. Chaturvedi

as the Inquiry Officer.

5. Sh. V.K. Chaturvedi had conducted a second inquiry and

submitted a report dated 3rd May, 2000 absolving the petitioner

of the first charge noted above but found that the petitioner

had not co-operated with the vigilance team and, therefore,

found him guilty of charge No.2. This report was placed for

consideration for the disciplinary authority who, on a

consideration of the inquiry report, passed an order dated 30th

May, 2000 making several observations on the material

brought on record during the inquiry and drawing the following

conclusions:-

"My above doubts establish the fact that independent witness Sh. Babu Ram s/o Sh. Gulab Singh has been won over by the party-charged and his statement has been got changed. The illegal money as reported by Vigilence Inspectors was demanded and accepted by Constable Sathpal Singh.

Under the circumstances, I hold the party- charged guilty for both the charges levelled against him.

Before any punishment for the above charges is awarded to the party-charges, I give an opportunity to the party-charged to submit any defence on the above points within 15 days from the date of receipt of this notice. A copy of the findings submitted Shri V.K. Charturvedi, IPF/SCNL is also enclosed herewith."

6. A notice dated 31st May, 2000 was thereafter issued to

the petitioner by the disciplinary authority enclosing a copy of

the findings of the inquiry officer. The petitioner was thereby

informed that the disciplinary authority would take a suitable

decision after considering the report and in case the petitioner

wishes to make any representation or submission, he could do

so in writing to the disciplinary authority within a period of 15

days from the receipt of the letter.

7. The petitioner had submitted a detailed representation

challenging the legality and validity of the second inquiry and

also observing that the petitioner had been absolved of all

charges by the first inquiry. It was also urged that the findings

on the second charge of the inquiry officer were passed on

assumption and was without any evidence.

8. The disciplinary authority thereafter proceeded to inform

the petitioner by a communication dated 15th January, 2001

that the penalty of removal from service with immediate effect

had been awarded to him.

9. As noted above, the petitioner's appeal assailing the

actions and orders of the disciplinary authority was rejected by

the order dated 17th May, 2001. The petitioner's revision

petition assailing the two prior orders was considered by the

Additional Chief Security Commissioner of the Railway

Protection Force who thereupon modified the punishment

which had been imposed to that of the compulsory retirement

in place of removal from service.

10. Before this court, the petitioner has primarily assailed the

action of the respondents in directing the second inquiry on

grounds of legal competence and jurisdiction to do so. In this

regard, reliance has been placed on a pronouncement of the

Apex Court reported as (2007) 11 SCC 517 titled as Kanailal

Bera vs. Union of India and Others (para 6 & 7). It is

undisputed before us that in the first inquiry, the petitioner had

been exonerated of both the charges on which the inquiry had

been conducted against him. So far as the reasons for directing

the de novo inquiry are concerned, in the order dated 31st May,

1999, the disciplinary authority had been of the opinion that

the complete evidence, oral and documentary, had not been

placed before the inquiry officer.

11. It is not disputed before us that the second inquiry was

directed on the very charges for which a full-fledged inquiry

had been conducted against the petitioner and he had been

absolved of the charges. The respondents are unable to place

before us any rules and regulations which prescribe such a

procedure of directing the second inquiry on identical charges

by the concerned authority. In this context the principles laid

down by the Apex Court in Kanailal Bera (supra) would

certainly have a bearing and would clearly apply to this case

and deserve to be considered in extenso. The same read as

follows:-

"6. xxxx Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry."

12. So far as the manner in which the disciplinary authority

would proceed in case it was of the view that the complete

material has not been placed before the inquiry officer is

concerned, reference can usefully be made to the earlier

pronouncement of the Supreme Court reported at (1971) 2

SCC 102, K.R. Deb vs. CCE wherein the Supreme Court had

construed the provisions of Rule 15 (1) of the Central Civil

Services (Classification, Control and Appeal) Rules, 1957 and

held as follows:-

"12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.

13. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant."

13. The disciplinary authority has therefore failed to follow a

procedure permitted and prescribed by law. It was open to the

disciplinary authority in the instant case to record further

evidence or call the material which had been ignored by the

inquiry officer to be produced after giving full opportunity to

the petitioner or the inquiry officer could have been asked to

record further evidence. The same was not done.

There is therefore substance in the challenge by the

petitioner to the direction to conduct a second inquiry on the

same charges as the first. This is more so for the reason that

the first inquiry had exonerated the petitioner of all charges. It

has to be held that the same was unwarranted and illegal.

14. Having arrived at this conclusion, this matter should not

have detained us any further. However, the petitioner has

raised a second ground of challenge to the finding of guilt and

the punishments, which had been imposed upon him. So far as

the second inquiry report is concerned, the inquiry officer had

found the petitioner guilty of only the second charge and had

also exonerated the petitioner of any culpability so far as the

first charge is concerned. As noted hereinabove, so far as the

first charge is concerned, the disciplinary authority had

disagreed with the recommendations of the inquiry officer and

in the order recorded on 30th May 2000 had arrived at a

conclusion that the independent witness had been won over by

the petitioner and his statement was as a result changed.

Thereafter, the disciplinary authority arrived at a conclusion

that the petitioner was guilty of both the charges. The notice

to the petitioner was issued on 31st May 2000 after arriving at

such conclusion calling upon the petitioner to submit a

representation. To say a least, this notice was meaningless in

as much as the disciplinary authority had arrived at clear

conclusions as has been recorded in the order dated 30th May,

2000 noted hereinabove.

15. It needs no elaboration that when disciplinary

proceedings are envisaged against any employee, the

disciplinary authority has the jurisdiction either to proceed in

the matter and conduct the inquiry himself or to delegate the

same to an appropriate inquiry officer. In the instant case, the

disciplinary authority assigned the task of undertaking the

inquiry to his subordinate. The disciplinary authority was not in

agreement in entirety with the report which he received in the

second inquiry as well. Faced with such disagreement, the

question which arises is the manner in which the disciplinary

authority shall proceed in the event of disagreement with the

findings and recommendations of an enquiry officer. This issue

is no more res integra and stands settled by the Supreme Court

in the plethora of judgments which have been relied upon by

the learned Senior Counsel for the petitioner before us.

16. All doubts on this issue were authoritatively settled by the

Supreme Court in the pronouncement reported at (1998) 7

SCC 84, Punjab National Bank v. Kunj Behari Misra,

wherein the Court stated as follows:

"18. xxxx When the inquiry is conducted by the inquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It 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 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 (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 a representation before the disciplinary authority records its findings on the charges framed against the officer." (Emphasis supplied)

17. On the same question in AIR 1999 SC 3734, Yoginath

D. Bagde vs. State of Maharashtra, it was held as follows:-

"28. In view of the provisions contained in the statutory Rule extracted above, it is open to the Disciplinary Authority either to agree with the findings recorded by the Inquiring Authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also, if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the Rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established, "an opportunity of hearing" may have to be read into the Rule by which the procedure for dealing with the enquiring authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be "not guilty" by the enquiring authority, is found "guilty" without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded." (Emphasis supplied)

"31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges leveled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry

officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer.

xxxx

So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage.

xxxx

52. In the instant case, we have scrutinised the reasons of the Disciplinary Committee and have found that it had taken its final decision without giving an opportunity of hearing to the appellant at the stage at which it proposed to differ with the findings of the Enquiry Officer. We have also found that the complainant's story with regard to the place at which the demand was allegedly made by the appellant was inconsistent. We have also noticed that the trap laid by the A.C.B., Nagpur against the appellant had failed and was held by the enquiry officer to be a farce and not having been laid with the permission of the Chief Justice. We have also noticed that there was absolute non-consideration of the statements of defence witnesses, namely, Dr. Naranje and Mr. Bapat, advocate, by the Disciplinary Committee. This factor in itself was sufficient to vitiate the findings recorded by that Committee contrary to the findings of the enquiry officer."

18. Our attention is also drawn to the pronouncement of the

Supreme Court in 2007 (5) SLR, Lav Nigam vs. Chairman,

MD, ITI Ltd. & Anr. wherein these principles were reiterated

by the apex court. In this case, no notice was given to the

delinquent before the disciplinary authority recorded its final

conclusion differing with the findings of the enquiry officer. A

show cause notice was given merely for the proposed

punishment of removal from service. The Supreme Court held

as follows:

"10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed.

xxxx

13. We have already quoted the extracts from the show-cause notice issued by the disciplinary authority. It is clear that no notice at all was given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was merely a show-cause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside."

19. In (2003) 2 SCC 449, State Bank of India and others

vs. K.P. Narayanan Kutty, the Supreme Court rejected the

contention on behalf of the appellant that unless denial of an

opportunity to persuade the disciplinary authority to accept the

favourable conclusion of the inquiry officer has resulted in

prejudice to the respondents, the order of dismissal could not

be set aside. In view of the clear enunciation of law on subject,

the disciplinary authority was bound to have communicated the

points of disagreement and given an opportunity to the

petitioner to satisfy it that the conclusions of the inquiry officer

so far as his exoneration were concerned were justified. The

effect of not providing such an opportunity to the petitioner

certainly vitiates the order dated 30th May, 2000 and the order

of punishment dated 15th January, 2001 passed by the

disciplinary authority.

20. From a reading of the principles laid down by the Supreme

Court in the aforenoticed pronouncements, it is apparent that it

is the requirement of law that a charged officer is entitled to an

opportunity to represent to the disciplinary authority before

that it differs with the inquiry officer report and before

recording a finding of guilt, the charged officer must have an

opportunity to represent before the disciplinary authority

before it records final findings on the charges and any

punishment is imposed upon him. The court has explained that

this is the requirement to be done as part of the first stage of

the inquiry as was explained in (1993) 4 SCC 727 :1994 AIR

SCW 1050 Managing Director, ECIL, Hyderabad Versus

B. Karunakar.

21. As a result, the disciplinary authority is required to record

its tentative reasons for such disagreement and give an

opportunity to the charged officer to represent before it records

its findings. It has been held that this requirement is an

essential part of compliance with the principles of natural

justice which is required to be read into, even in rules

governing the disciplinary proceedings which are silent

thereon.

22. So far as the instant case is concerned, the

communication dated 31st May, 2000 relied upon,

communicates the conclusions already drawn by the

disciplinary authority and gives no real opportunity to the

petitioner to make a representation in respect of either the

points of this agreement or the proposed punishment. It is also

well settled that an opportunity to represent against the points

of disagreement which has to be afforded to the delinquent has

to be meaningful.

23. A similar opportunity of making a representation against

the inquiry report and the disagreement note after arriving at a

conclusion of guilt by the disciplinary authority was rejected by

the Supreme Court in Yoginath D. Bagde vs. State of

Maharashtra (supra) in the following terms:-

"34. Along with the show-cause notice, a copy of the findings recorded by the Enquiry Officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show-cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a "tentative" decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee.

35. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to findings on the

two charges framed against him, the principles of natural justice, as laid down by a Three-Judge Bench of this Court in Punjab National Bank and Ors. v. Kunj Behari Mishra : (1998) II LLJ 809 SC, referred to above, were violated."

It is noteworthy that in Yoginath D. Bagde Vs. State of

Maharashtra & Anr. (supra), notices had been issued to the

petitioner to show cause against a proposed penalty.

24. Mr. Rakesh Khanna, learned Senior Counsel for the

petitioner has also contended that even if, it were to be held

that communication dated 31st May, 2000 was in the nature of

the opportunity envisaged in Punjab National Bank and

Others Vs. Kunj Behari Misra (supra), the order finding the

petitioner guilty of both the charges as well as order of

punishment were unsustainable, because it was incumbent

upon the disciplinary authority to consider the material afresh

and pass a reasoned order thereupon. In this regard, reliance

has been placed on the principles laid down by the Apex Court

in (2006) 4 SCC 153, Ranjeet Singh Vs. Union of India

and others, wherein the court held as follows:

"22. In view of the aforementioned decisions of this Court, it is now well settled that the principles of natural justice were required to be complied with by the Disciplinary Authority. He was also required to apply his mind to the materials on record. The Enquiry Officer arrived at findings which were in favour of the Appellant. Such findings were required to be over turned by the Disciplinary Authority. It is in that view of the matter, the power sought to be exercised by the Disciplinary Authority, although not as that of an appellate authority, but akin thereto. The inquiry report was in favour of the Appellant but the Disciplinary Authority proposed to differ with such conclusions and, thus, apart from complying with the principles of natural justice it was obligatory on his

part, in absence of any show cause filed by the Appellant, to analyse the materials on records afresh."

(Emphasis by us)

25. So far as the challenge to the procedure adopted by the

disciplinary authority and the orders passed is concerned, the

same goes to very root of the exercise of the jurisdiction by the

disciplinary authority. In the instant case, the disciplinary

authority had drawn clear conclusions as is recorded in the

order dated 30th May, 2000. The petitioner has been denied an

opportunity to be notified the points of disagreement and to

make a representation before the disciplinary authority on such

point. After the drawing of the conclusions as recorded on 30th

May, 2000 by the disciplinary authority, there is certainly no

fresh consideration. The action and impugned order would not

be sustainable for this reason as well.

26. The appellate authority and the revisional authority have

upheld the order of the disciplinary authority. The revisional

authority has agreed with the findings of the disciplinary

authority but on the same findings has modified the

punishment from removal from service to compulsory

retirement. We have found substance in the challenge by the

petitioner to the proceedings of the disciplinary authority and

held that the same is not legally sustainable. For the same

reasons, the orders of the appellate authority and revisional

authority upholding the conclusions of the disciplinary authority

are also not sustainable and deserve to be set aside and

quashed.

27. In view of our findings on the challenge laid down by the

petitioner, it now becomes necessary to consider the

appropriate relief which could be granted to the petitioner. As

noticed above, the petitioner has been exposed to protracted

proceedings since the year 1999 as the matter has remained

pending and the petitioner was removed from service by the

order passed on 15th January, 2001 and has remained out of

service ever since. He has been in this court since the year

2005. We find that in similar circumstances, upon setting aside

an order of termination of service, the Supreme Court in

Kanailal Bera (Supra) had directed as follows:

"14. Having regard to the said fact, we are of opinion that interest of justice would be subserved if the appellant is denied the back wages for the said period. He, however, should be reinstated in service and be given all other consequential benefits."

In the above circumstances, we are inclined to grant the

same relief to the petitioner.

28. In view of the above discussion, it is directed as follow:-