Karnataka High Court

The Managing Director vs Sri B R Cheluvaraj on 22 January, 2021

Author: Satish Chandra Srishananda

                               1




       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF JANUARY, 2021

                           PRESENT

    THE HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA

                              AND

          THE HON'BLE MR. JUSTICE V.SRISHANANDA

            WRIT APPEAL NO.3407/2019 (S-RES)
BETWEEN:

THE MANAGING DIRECTOR
KARNATAKA SOAPS AND DETERGENTS LTD
NO.27, RAJAJINAGAR INDUSTRIAL
SUBURB, PB NO.5531,
PUNE NATIONAL HIGHWAY
BENGALURU-560 055
                                                ...APPELLANT
(BY SRI.PRASHANTH B.R., ADV., FOR
    SRI.M.R.C.RAVI, ADV.)

AND:

SRI.B.R.CHELUVARAJ
S/O.B.C.RAMASWAMY
AGED ABOUT 41 YEARS
RESIDING AT S-56,
RASHI NILAYA
6TH CROSS, NEAR PUMP HOUSE
MANDYA-571 401
                                             ... RESPONDENT

(BY SRI.M.S.BHAGWAT, ADV.,)

      THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 22.07.2019 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT
PETITION NO.33808/2018 (S-RES) AND ETC.
                                    2




     THIS WRIT APPEAL COMING ON FOR HEARING THIS DAY,
SATISH CHANDRA SHARMA J., DELIVERED THE FOLLOWING:


                            JUDGMENT

The present writ appeal is arising out of the order dated

22.07.2019 passed in WP.No.33808/2018.

2. The facts of the case reveal that the present appellant

has issued a notification on 16.10.2012 inviting applications for

the backlog posts in accordance with Karnataka State Civil

Services (Unfilled vacancies reserved for the persons belonging to

the Scheduled Castes and Scheduled Tribes) (Special

Recruitment) Rules, 2001. The respondent was appointed on

probation and while he was on probation, as there was an alleged

suppression in respect of details of criminal cases, a discharge

order was passed on 21.1.2015.

3. The sole respondent being aggrieved by the order

dated 21.1.2015 filed a writ petition before this Court i.e.,

WP.No.3517/2015 and this Court has set aside the discharge

order dated 21.1.2015 and directed the employer to conduct an

enquiry and to conclude the same within six months.

4. That an enquiry was conducted by the Principal

District and Sessions Judge (retired) and it was concluded on

6.2.2016 exonerating the respondent and subsequently a report

was received from the Sub Inspector of Police, Mandya West, in

respect of some criminal cases pending against the sole

respondent. The disciplinary authority has thereafter passed an

order on 25.3.2016 for conducting a fresh departmental enquiry.

5. The sole respondent made a representation on

20.1.2018 for reinstatement and back wages. However, the same

was not done and a fresh charge memo was issued by the

disciplinary authority on 31.1.2018. Thereafter, finally an order

has been passed terminating the services of the petitioner on

14.6.2019. The respondent came up before this Court by filing a

subsequent writ petition i.e., WP.No.33808/2018 with a limited

prayer that he is entitled for salary for the intervening period i.e.,

w.e.f., 21.1.2015 to 14.6.2019. The learned Single Judge allowed

the writ petition holding that the employee is entitled for salary

from the date the order of discharge was quashed till a

subsequent discharge order has been passed i.e., from 21.1.2015

to 14.6.2019.

6. Learned counsel for the appellant has argued before

this Court that the learned Single Judge has erred in law and in

facts of the case in allowing the writ petition as in the earlier

round of litigation while deciding WP.No.3517/2015, vide order

dated 23.11.2015, the learned Single Judge has not directed

reinstatement and has left all of the contentions open. On the

other hand, learned counsel for the employee has argued before

this Court that the learned Single Judge was justified in granting

back wages as the discharge order passed against the employee

was set aside. He has further contended that once the discharge

order of an employee is set aside, his reinstatement becomes

inevitable and without reinstating him in service, the question of

holding a departmental enquiry does not arise and therefore, the

learned Single Judge was justified in granting him back wages.

7. This Court has carefully gone through the order

passed by the learned Single Judge dated 22.7.2019 passed in

W.P.No.33808/2018. Paragraphs 2 to 10 read as under:

"2. Undisputed facts are that the petitioner was on probation. He was discharged from service on 21.01.2015 on several allegations relating to misleading the appointing authority and obtaining an order of appointment. This Court has set aside the order of discharge dated 21.01.2015 in

W.P.3517/2015 on 23.11.2015. Paragraph No.8 of the order reads as under:-

"8. The quashing of the impugned order does not automatically entitle the petitioner to the relief of reinstatement. The petitioner has not even become a permanent employee. So the question of suspending him pending enquiry would not arise. If he is a reputation risk in the perceptual assessment of the respondent, it cannot be directed to reinstate him pending enquiry. The reinstatement, the payment of backwages, etc., would depend upon the outcome of the enquiry directed hereinabove. All contentions are left open to be urged by the petitioner before the enquiry officer and / or disciplinary authority."

3. Pursuant to the disposal of the aforesaid petition, respondent proceeded to hold enquiry and it was concluded in terminating the services of the petitioner on 14.6.2019. In this backdrop, whether the petitioner is entitled to monetary benefits i.e., arrears of salary during the intervening period from 21.01.2015 to 14.06.2019 or not?

4. Learned counsel for the respondent stated that in paragraph No.8 of the order passed in W.P.No.3517/2015, it is made clear that probation cannot be proceeded under suspension. Consequently, petitioner is not entitled for reinstatement and payment of backwages etc. Such observation is contrary to the material and the decision of the Hon'ble Supreme Court. The respondent has not appraised this Court by producing any statutory provision that the probationer cannot be placed under suspension, so as to support the observation made in paragraph No.8 of the said order.

5. Learned counsel for the respondent relied on two decisions in support of the contention that the petitioner is not entitled for arrears of pay during the period from 21.01.2015 to 14.06.2019. In the case of MANAGEMENT OF V.I.S.L., BHADRAVATHI, SHIMOGA DISTRICT AND B.VEERANNA GOWDA PATIL AND ANOTHER - 2000 (4) L.L.N.850, it has been held in paragraph No.6 as under:-

"6. An employee who is found to be guilty of securing appointment by playing fraud on the employee is not entitled to any equitable consideration or relief. This aspect of the matter has been clarified more than once by the Apex Court. In the case of Union of India v. M.Bhaskar and others (A.I.R. 1996 S.C. 686), it has been held that:

"When once fraud on the employer is detected, appointment orders themselves are tainted and vitiated by fraud and acts of cheating on the part of the employees, appointment orders are liable to be recalled and voidable at the option of the employer concerned. Once fraud of the employees in getting such employment was detected, the employees were proceeded against in a departmental enquiry and called upon to have their say and thereafter have been removed from service. Orders of removal would amount to recalling of fraudulently obtained and erroneous appointment orders which were awarded by the employer after following due process of law and complying with the principles of natural justice. Fraudulently obtained appointment orders would be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases, merely because the employees have

continued in service for a number of years on the basis of such fraudulently obtained employment orders, cannot create equity in their favour or any estoppel against the employer."

6. Further relied on the decision of Hon'ble Supreme Court in the case of KERALA SOLVENT EXTRACTIONS LTD. v. A.UNNIKRISHNAN AND ANOTHER

- (2006) 13 SCC 619 to paragraph No.9, it has been held as under:-

"9. Shri Vaidyanathan, learned Senior Counsel for the appellant, submitted, in our opinion not without justification, that the Labour Court's reasoning bordered on perversity and such unreasoned , undue liberalism and misplaced sympathy would subverty all discipline in the administration. He stated that the management will have no answer to the claims of similarly disqualified candidates which might have come to be rejected. Those who stated the truth would be said to be at a disadvantage and those who suppressed it stood to gain. He further submitted that this laxity of judicial reasoning will imperceptibly introduce slackness and unpredictability in the legal process and, in the final analysis, corrode legitimacy of the judicial process".

7. In V.I.S.L.'s case, the grievance of the respondent was claiming equitable relief for having rendered number of years of service. In Kerala Solvent Extraction's case referred to paragraph No.9, has no application to the present case. Both the decisions do no assist the respondent, for the reasons that the petitioner is not claiming any equitable relief in the present matter.

8. Now question is whether quashed order dated 21.01.2015 and its effect, is required to be examined till 14.6.2019. The Hon'ble Supreme Court in the case of SHREE CHAMUNDI MOPEDS LTD. v. CHURCH OF SOUTH INDIA TRUST ASSOCIATION ASI CINOD SECRETARIAT, MADRAS - (1992) 3 SCC 1, in paragraph No.10, it has been held as under:-

"10. In the instant case, the proceedings before the Board under Sections 15 and 16 of the Act had been terminated by order of the Board dated April 26, 1990 whereby the Board, upon consideration of the facts and material before it, found that the appellant- company had become economically and commercially non-viable due to its huge accumulated losses and liabilities and should be wound up. The appeal filed by the appellant-company under Section 25 of the Act against said order of the Board was dismissed by the Appellate Authority by order dated January 7, 1991. As a result of these orders, no proceedings under the Act were pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the order of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which

has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned Single Judge of the Karnataka

High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A. No. 16 of 1991 filed by the appellant-company against the order of the learned Single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 of 1992, directed against the order for winding up of the appellant-company. The said appeal, therefore, fails and is liable to be dismissed".

9. The Hon'ble Supreme Court had occasioned to examine the effect of quashing and stay of the order. The principle laid down in the aforesaid decision is that quashing of an order would affect restoration of original position. In view of the principle laid down in the aforesaid decision and in Chamundi Moped's case and the observations made by this Court in W.P.No.3517/2015 read with the regulations of the respondent, that probationer can be placed under suspension, is contrary to law. Moreover, there is no statutory provision denying salary for the intervening period for quashing of discharge order and termination order. Termination order would be prospective. It has no retrospective effect i.e., from the date of discharge order, so as to deny salary to the petitioner for the intervening period. That apart, there are no statutory provision in support of respondent's contention and observation of this Court in W.P.No.3517/2015.

10. In view of these facts and circumstances, writ petition is allowed only to the extent that the petitioner is entitled to arrears of salary from 21.01.2015 to 14.06.2019.

The same shall be calculated and disbursed to the petitioner within a period of three months from the date of receipt of a copy of this order, failing which, petitioner is entitled to interest at the rate of 8% p.a. on the arrears amount."

8. The aforesaid order makes it very clear that the

respondent was discharged from service vide order dated

21.1.2015 and the discharge order was set aside by this Court by

an order dated 23.11.2015 and in paragraph 8 of the aforesaid

order, it has been categorically held that the employee is not

entitled for automatic reinstatement as he was not a permanent

employee and the issue of reinstatement, payment of back

wages, etc., would depend upon the outcome of the enquiry

directed by the Court.

9. The department conducted an enquiry by issuing a

charge memo dated 8.1.2016, however, he was exonerated by

the enquiry officer and the disciplinary authority, after receiving a

subsequent information in respect of his involvement in a criminal

case wanted to proceed further. In the meanwhile, another writ

petition was filed i.e., WP.No.19505/2016 and this Court by an

order dated 8.1.2018 has permitted the department to initiate a

fresh departmental enquiry against the respondent in accordance

with law. Paragraph 10 of the order dated 8.1.2018 reads as

under:

"10. However, the respondent shall be free to initiate a fresh departmental enquiry against the petitioner, but strictly in accordance with law."

10. The respondent has thereafter preferred a contempt

petition and the Division Bench of this Court by an order dated

3.7.2018 passed in CCC.No.334/2018, in paragraphs 9 to 10 has

held as under:

"9. A bare perusal of the order dated 23.11.2015, clearly reveals that no positive direction was given by the learned Single Judge that the complainant has to be reinstated, and back wages need to be paid. Thus, merely because the complainant may have been exonerated in the first enquiry does not mean that he is automatically reinstated and the back wages have to be paid. Thus, no contempt is made out even if the complainant's representation for reinstatement, and back wages has been rejected by the accused.

10. Moreover, rejection of his representation has given rise to a fresh cause of action between the complainant and the accused. But the fresh cause of action cannot be brought within the contempt jurisdiction of this Court. The complainant has ample legal remedies for challenging the order, whereby his representation has been rejected and he has been denied the reinstatement.

11. For the reasons stated above, this Court does not find any merit in the present contempt petition. It is, hereby, dismissed."

11. Thus, the Division Bench of this Court has held that

no contempt is made out as back wages have not been paid. The

appellant before this Court, has finally passed an order in the

departmental enquiry, again dismissing the respondent from

service by an order dated 14.6.2019 and the respondent has

preferred a writ petition, which is still pending. He has also

preferred a writ petition i.e., 33808/2018 claiming salary for the

intervening period i.e., 21.1.2015 to 14.6.2019 i.e., for the

intervening period between first dismissal order and second

dismissal order and the same has been allowed vide order dated

22.7.2019, which is under challenge.

12. The Full Bench of the Calcutta High Court in the case

of Md.Harul Al Rasid v. Union of India and others, reported in AIR

2015 CALCUTTA 49 has dealt with the issue of quashing of the

disciplinary proceedings and remand of the matter back to the

disciplinary authority for proceeding de novo from the stage of

enquiry. The Full Bench has held that in case of remand, the

employee is not entitled to be reinstated as a matter of right. The

Full Bench of Calcutta High Court in the aforesaid case in

paragraphs 8 to 16 has held as under:

"8. Once the departmental enquiry has been set aside because it is patently defective, the issue arises whether an employee is entitled to be reinstated. In normal

circumstances a delinquent employee who has been dismissed from service on the basis of a defective enquiry would be entitled to reinstatement with all consequential benefits. However, if the Tribunal decides that the matter should be remanded to a stage before completion of the enquiry, the employee must be put back into the same position as he was prior to the decision of the disciplinary authority. In the case of Managing Director, ECIL, Hyderabad & Ors., v. B. Karunakar & Ors., reported in (1993) 4 SCC 727, the Constitution Bench of the Supreme Court considered whether the report of an Enquiry Officer or authority appointed to hold a departmental enquiry against a delinquent employee should be furnished to the employee. The Court held thus:

"31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the enquiry, by placing the employee under

suspension and continuing the enquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back- wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the enquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh enquiry from the stage of furnishing the report and no more, where such fresh enquiry is held. That will also be the correct position in law. (emphasis supplied)

9. This view has been reiterated by the Supreme Court in the case of U.P State Spinning Co. Ltd., v. R.S.Pandey and another reported in (2005) 8 SCC 264, Vidya Vikas Mandal & Anr., v. Education Officer & Anr., reported in (2007) 11 SCC 352 and U.P State Textile Corporation Ltd. v. P.C Chaturvedi & Ors., reported in (2005) 8 SCC 211.

10. In the case of Chairman, Life Insurance Corporation of India & Ors., v. A. Masilamani reported in (2013) 6 SCC 530 the Supreme Court considered the effect in service jurisprudence on the employment of a delinquent employee who has been subjected to a defective disciplinary enquiry. The employee in the aforesaid case was working with the LIC as a Higher Grade Assistant. He applied and obtained a housing loan from an institution to construct his house. He also applied for another housing loan from the LIC under the Corporation's Scheme. The loan was sanctioned after completion of all the requisite formalities. The Corporation thereafter noticed that there were certain irregularities and deviations with respect to the construction of the house and that the loan had been obtained from the LIC as a result of non-disclosure of the requisite facts. A charge- sheet was issued to the employee. He denied the charges

levelled against him. As the employee's explanation was not found to be satisfactory, a departmental enquiry was conducted against him. The report was submitted by the Enquiry Officer and a copy of the same was served on the employee with a notice to show cause. The reply was furnished by the employee and after considering the report as well as the reply the disciplinary authority imposed the punishment on the employee which had been proposed in the show cause notice of reduction in the basic pay to the minimum amount in the time scale. The statutory appeal available to the employee was dismissed after which he preferred a representation to the Chairman of the LIC. That appeal was also dismissed. Aggrieved by the order, the employee preferred a writ petition for quashing the enquiry proceeding and consequential orders. The writ petition was allowed by a learned Single Judge of the Madras High Court who observed that the enquiry was conducted in violation of the statutory rules applicable and in breach of the principles of natural justice. This was because the delinquent was not afforded an adequate opportunity to cross-examine the witnesses. The High Court further held that the Appellate Authority had not applied its mind judicially and had merely concurred with the decision of the disciplinary authority. The Division Bench of the High Court dismissed the appeal preferred by the LIC. Aggrieved by that order the LIC moved the High Court.

11. Two issues were dealt with by the Supreme Court in this case, namely:

"15.1 When a court/tribunal sets aside the order of punishment imposed in a disciplinary proceeding on technical grounds i.e non-observance of statutory provisions, or for violation of the principles of natural justice, then whether the superior court, must provide opportunity to the disciplinary authority to take up and complete the proceedings from the point that they stood vitiated; and 15.2 If the answer to Question 1 is that such fresh opportunity should be given, then whether the same may be denied on the ground of delay in initiation, or in conclusion of the said disciplinary proceedings."

12. After considering its earlier judgments in the case of Managing Director, ECIL, Hyderabad (supra), Hiran Mayee Bhattacharyya v. S.M School for Girls reported in (2002) 10

SCC 293, U.P State Spinning Company Ltd. v. R.S Pandey reported in (2005) 8 SCC 264 and Union Of India v. Y.S Sadhu, reported in (2008) 12 SCC 30 held that when an order of punishment is set aside because of infirmities in the disciplinary proceedings, reinstatement cannot be ordered as a matter of course. The Court opined that whether an employer should be granted opportunity to hold an enquiry de novo or to complete the enquiry from the point that it stood vitiated depended on the gravity of the delinquency involved and the magnitude of the misconduct alleged. The Court observed further that the departmental enquiry should not generally set aside on the ground of delay in its initiation as such a power is de hors the limits of judicial review. In the event the Court or Tribunal exercises such power, it exceeds its power of judicial review at the very threshold. The Court, therefore, observed that normally a charge-sheet or show cause notice issued during the course of departmental proceedings cannot be quashed by the Court. The same principles were applicable where there is a delay in conclusion of the disciplinary proceedings. The Supreme Court observed that the Court or Tribunal must consider all the relevant facts and balance and weigh the same so as to determine whether it is in the interest of clean and honest administration that the judicial proceedings should be allowed to be terminated on the ground of delay in their conclusion.

13. This view has been reiterated by the Supreme Court in the case of Anant R. Kulkarni v. Y.P Education Society reported in (2013) 6 SCC 515. However based on the facts in this case, where both the School Tribunal and the learned single judge of the Bombay High Court had found that the enquiry was conducted without complying with the rules applicable and had also exonerated the employee, the Supreme Court did not permit the employer to hold an enquiry de novo.

14. Thus, it is evident that in case of service jurisprudence a delinquent would not be entitled to be reinstated as a matter of right if the disciplinary proceedings have been quashed due to technicalities and a defective enquiry. If the enquiry is to be started de novo the delinquent would not be entitled to be reinstated. This would be more so when an employee is placed under suspension pending the enquiry and the enquiry held against him has been set aside for irregularities or because of a procedural defect.

The Court may opine whether the enquiry should either start de novo or from the point at which the defect occurred, depending on the service rules applicable. However, the employee would be placed in the same position that he was before the order of punishment was imposed on him, that is, he would still continue under suspension. If the service rules applicable to an employee warrant the reinstatement of the employee in service due to a defective enquiry, the Court would not hesitate in reinstating him unless as the Supreme Court has observed, the charge against the delinquent is of such magnitude and the gravity of the misconduct does not warrant the reinstatement of the delinquent in service during the pendency of the enquiry. This is because the Court has to balance all factors and determine whether it would be in the interest of justice and better administration to reinstate the employee while the disciplinary enquiry proceeds de novo or from the point at which it was vitiated.

15. Similarly under Industrial Jurisprudence an employer is not bound to reinstate an employee immediately the Labour Court or Industrial Tribunal finds that a defective enquiry has been conducted against a delinquent workman. The employer is extended an opportunity to lead evidence before the industrial adjudicator to prove the charges against the charge sheeted workman. After considering the ratio pronounced in several of its earlier judgments, the Supreme Court while deciding the case of Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management reported in (1973) 1 SCC 813 held that an employee cannot be reinstated only because there is a defective enquiry conducted against him or if he has been dismissed without holding an enquiry. The employer is permitted to lead the evidence in the Industrial Tribunal or Labour Court to prove the allegations or misconduct against the employee. This is because the Supreme Court observed that it would only delay matters further if the workman was reinstated and a fresh disciplinary enquiry was held by the employer. If it went against the workman he would probably seek a reference again under Section 10 of the Industrial Disputes Act, 1947 for adjudication of his dispute before the Tribunal. In order to avoid this situation the Supreme Court opined that the employee would continue to be out of service even though the enquiry was vitiated till the employee proved the charges before the industrial adjudicator. Thus even in industrial jurisprudence a delinquent workman is not entitled to reinstatement

immediately after the industrial adjudicator decides, as a preliminary point, that either there was no enquiry held or that a defective domestic enquiry had been held against the workman. It is only when the employer leads evidence before the Industrial Tribunal or Labour Court and is unable to prove the charges against the workman that he is entitled to be reinstated with consequential benefits.

16. The aforesaid question referred to as is answered as follows:

A delinquent is not entitled to be reinstated as a matter of right when a disciplinary enquiry held against him has been quashed and the matter is remanded to the disciplinary authority for proceeding de novo from that stage of the enquiry. The relief of reinstatement at that stage would be dependent on the gravity and the magnitude of the misconduct alleged against him."

13. The aforesaid law laid down by the Full Bench of

Calcutta High Court makes it very clear that an employee is not at

all entitled for automatic reinstatement and the right of

reinstatement would depend on the gravity and the magnitude of

the misconduct alleged against the employee.

14. In the present case, the learned single Judge while

setting aside the order of discharge has categorically held that the

employee is not entitled for reinstatement and therefore, when

once it was held by the learned Single Judge that the employee is

not entitled for reinstatement, the question of granting

back wages does not arise, especially when he has been again

dismissed by holding a regular departmental enquiry.

15. The Hon'ble Supreme Court in the case of U.P State

Textile Corpn. Ltd., vs P.C.Chaturvedi and Others, reported in

(2005) 8 SCC 211, in paragraph 18 has held as under:

"18. In Managing Director, ECIL v. B. Karunakar, [1993] 4 SCC 727 it was observed as follows:

"Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunal's should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under

suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law."