Delhi High Court
Ashok Kumar vs Uoi & Ors. on 29 October, 2018
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Judgment: 29.10.2018
+ W.P.(C) 4200/1997
ASHOK KUMAR ..... Petitioner
Through: Mr.M.K.Bhardwaj, Advocate
versus
UOI & ORS. ..... Respondent
Through: Ms.Rashmi Malhotra, Mr.Shalinder
Saini & Mr.Himanshu Kaushik,
Advocates
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE PRATEEK JALAN
S.RAVINDRA BHAT, J. (ORAL)
ORDER
% 29.10.2018
1. The petitioner's grievance is that the Tribunal even while returning
its finding that the law was not complied with inasmuch as the copy of the
Inquiry Report was not furnished to the petitioner [by virtue of the decision
in Managing Director ECIL vs. B. Karunakar (1993) 4 SCC 727], directed
his reinstatement but without any benefit of past service. The operative
order of the Tribunal is as follows:
"4. Ordinarily, in the circumstances aforesaid, we would
have set aside the impugned order and sent back the case to
the disciplinary authority to start afresh with the disciplinary
proceedings from the stage of supply of a copy of the report of
the Inquiry Officer, however, in view of the inordinate delay in
disposal of this application and the nature of allegations of
misconduct, we are of the view that it would serve the ends of
justice if the applicant is directed to be reinstated in service
without any back wages or seniority on the basis of past
service instead of directing fresh proceedings from the stage of
supply of Inquiry Officers‟ report.
5. In the result, this application partly succeeds and it is
hereby partly allowed. The impugned order of removal from
service as affirmed by the Appellate Authority is set aside and
the respondents are directed to reinstate the applicant in
service within a period of two months from the date of receipt
of a copy of this order without any back wages or seniority on
the basis of his past service. However, the period between the
date of the impugned order of removal and the date of
reinstatement shall be treated as qualifying service for the
purposes of post retirement benefits. No costs."
2. This petition was called for hearing and was dismissed on two
previous occasions. The order dated 23rd August, 2016, the Court made the
following observations:
"2. Learned counsel for the petitioner submits that as,
admittedly, the copy of the inquiry report was not supplied to
the petitioner, thus the entire inquiry proceedings stand
vitiated and consequently, not only the petitioner should be
reinstated but would also be entitled to back wages and
consequential promotion.
3. Learned counsel for the respondents submits that having
regard to the Article of Charge the Tribunal has taken a
lenient view.
4. After some arguments, learned counsel for the
petitioner, after taking instructions from the petitioner submits
that the petitioner is willing to abide by the order passed by the
Tribunal subject to the modification that he may be given
benefit of seniority from the date of his reinstatement at a
future date and that he would not claim any monetary benefit
of seniority till now but only prospectively.
5. We may notice at this stage that the article of charge
was framed in the year 1990 and the order of the Tribunal is of
the year 1997 and thereafter this writ petition is pending ever
since.
6. At this stage, learned counsel for the respondents wishes
to seek instructions as to whether this arrangement can be
made or not, i.e. to grant seniority to the petitioner in the
peculiar circumstances of the case with no back wages."
3. Learned counsel for the respondent submits that according to
instructions given to her, the suggestions are acceptable and the petitioner's
seniority would be given to him with effect from the date of his
reinstatement.
4. Learned counsel for the petitioner, however, submitted that this Court
should consider the overall perspective and given there was no material or
evidence to hold the petitioner guilty of the charges leveled against him.
He submitted that since the petitioner had continued his service from 1987
till his removal in 1991, the wiping out of his ten years of service would be
seriously prejudicial to him.
5. Having considered the order of the Tribunal as well as the previous
order of the Court dated 28th March, 2016, we notice that the Tribunal's
approach was broadly equitable. In B. Karunakar (supra), the Court
directed the remission of cases to disciplinary bodies, wherever defects on
account of failure to provide copies of inquiry reports were found and
thereafter proceed to decide whether penalty, and to what extent, had to be
imposed in case the employee is not exonerated. The necessary
consequence of this, is that further proceedings had to be continued.
Instead, the Tribunal here adopted an equitable approach taking into
account the fact that relegating the parties to Inquiry proceedings would
have caused further delay and prolonged the resolution of the issue.
6. In these circumstances, the Tribunal directed reinstatement without
back wages and benefits of the past service. Having regard to the overall
facts and circumstances, this Court is of the opinion that the petitioner's
claim for seniority based on past service is not justified. However, at the
same time, the Court notices that the period that he was initially employed
sometime in 1987 till the date of his removal from service cannot be
altogether ignored, at least for the purposes of the terminal benefits
accruing to him.
7. Having regard to these considerations, the Court hereby directs that
the petitioner shall be entitled to seniority from the date of his re-
instatement and at the same time also entitled to all service benefits for the
period from his initial date of appointment in 1987 till the date of his
removal and thereafter from the date of his reinstatement till the date of
superannuation.
8. The writ petition is partly allowed in the above terms.
S. RAVINDRA BHAT, J
PRATEEK JALAN, J
OCTOBER 29, 2018
„hkaur‟
