1. Termination from service by appellate authority instead of disciplinary authority denied right of appeal. (Para 1 , 2 )
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2001 Supreme(SC) 96
SUPREME COURT OF INDIA
B.N.Agrawal : G.B.Pattanaik
Electronics Corporation Of India
Versus
G.Muralidhar
Case No. : 5251 of 1996
Date of Decision : 1/17/01
Important Points
Termination of service by an appellate authority instead of the disciplinary authority vitiates the order due to the denial of the right of appeal, entitling the employee to reinstatement, although back wages may be limited based on the circumstances.
Subject
Service Law - Termination of Service
Act Referred
Headnote
(A) Service Law - Termination of service - Right of appeal - Order of termination passed by appellate authority instead of disciplinary authority - Right of appeal denied to delinquent employee - Such procedure vitiates the order of punishment - Employee entitled to reinstatement and back wages, though back wages may be limited based on facts and circumstances. (Para 2)
(B) Administrative Law - Power of review or revision - Absence of general provision conferring such power to a superior authority - Court cannot create a right of appeal where none exists in rules, as it would amount to fresh legislation. (Para 2)
Facts of the case:
An employee's service was terminated by an order passed by the appellate authority rather than the disciplinary authority. The High Court set aside the termination, ruling that the right of appeal was denied, and ordered reinstatement with back wages. The employer challenged this, suggesting that the matter be referred to a higher board for appeal to scrutinize the legality of the decision.
Findings of Court:
The court found that under the service rules, the official who passed the order was the appellate authority and not the disciplinary authority. Consequently, the employee's right to appeal was denied. Furthermore, it was noted that there is no general provision conferring power of review or revision to the superior board against orders passed by the appellate authority.
Issues: Whether a termination order passed by an appellate authority instead of the disciplinary authority is vitiated due to the denial of the right of appeal.
Ratio Decidendi: When the authority designated as the appellate authority passes the initial order of punishment, the employee is deprived of their right to appeal. This procedural lapse vitiates the order of termination. The court cannot substitute the missing legal remedy by directing an appeal to a higher board if no such provision exists in the rules, as doing so would amount to fresh legislation.
Result: Civil appeal disposed of; reinstatement upheld with seniority and continuity of service; back wages limited to the interim amount already paid.
(B) Administrative Law - Power of review or revision - Absence of general provision conferring such power to a superior authority - Court cannot create a right of appeal where none exists in rules, as it would amount to fresh legislation. (Para 2)
Facts of the case:
An employee's service was terminated by an order passed by the appellate authority rather than the disciplinary authority. The High Court set aside the termination, ruling that the right of appeal was denied, and ordered reinstatement with back wages. The employer challenged this, suggesting that the matter be referred to a higher board for appeal to scrutinize the legality of the decision.
Findings of Court:
The court found that under the service rules, the official who passed the order was the appellate authority and not the disciplinary authority. Consequently, the employee's right to appeal was denied. Furthermore, it was noted that there is no general provision conferring power of review or revision to the superior board against orders passed by the appellate authority.
Issues: Whether a termination order passed by an appellate authority instead of the disciplinary authority is vitiated due to the denial of the right of appeal.
Ratio Decidendi: When the authority designated as the appellate authority passes the initial order of punishment, the employee is deprived of their right to appeal. This procedural lapse vitiates the order of termination. The court cannot substitute the missing legal remedy by directing an appeal to a higher board if no such provision exists in the rules, as doing so would amount to fresh legislation.
Result: Civil appeal disposed of; reinstatement upheld with seniority and continuity of service; back wages limited to the interim amount already paid.
Legal Category Hierarchy
Table of Contents
2. Appellant argued appellate order could be challenged before board; respondent argued right of appeal was denied. (Para 2 )
3. Appellate authority acted as disciplinary authority, denying valuable right of appeal, vitiating punishment order. (Para 2 )
4. Denial of statutory right of appeal vitiates the order of punishment, entitling employee to reinstatement. (Para 2 )
5. Reinstatement confirmed; back wages limited to amount already paid, with regular salary from reinstatement date. (Para 3 )
6. Can an appellate authority pass an initial order of termination, thereby denying a right of appeal?
No. An order of termination passed by the appellate authority instead of the disciplinary authority denies the statutory right of appeal and vitiates the order. (Para 1 , 2 )
7. What is the remedy when a statutory right of appeal is denied due to an order by the wrong authority?
The punishment order is vitiated, and the employee is entitled to reinstatement, though back wages may be limited based on case facts. (Para 2 )
8. Is an employee entitled to full back wages when reinstated due to denial of the right of appeal?
Not necessarily. Back wages may be limited depending on the facts and circumstances of the case, such as by payment of a lump sum. (Para 2 , 3 )
(1) THE order of termination from service of the delinquent-respondent was assailed before the Andhra Pradesh High Court by filing a writ petition. The said order of termination had been passed not by the disciplinary authority, but by the appellate authority. The learned Single Judge of the High Court came to the conclusion that by taking recourse to such procedure, a right of appeal was denied to the delinquent and, therefore, the order of termination is vitiated by application of the decision of this Court in Surjit Ghosh v. Chairmen & Managing Director, United Commercial Bank & Ors. [JT 1995 (2) SC 74 ]. That order of the learned Single Judge was assailed before the Division Bench by filing an ap peal. The Division Bench, however, upheld the order of the learned Single Judge and did not interfere with the same. Necessarily, therefore, the direction of the learned Single Judge for reinstatement and back wages remained to be implemented. When the matter came up to this Court, initially a notice had been issued to show cause as to why the relief of reinstatement and back wages granted by the High Court should not be modified in the light of the direction given in Surjit Ghosh case (supra). A further direction was given that a sum of Rs. 50,000.00 be paid to the delinquent in accordance with the aforesaid decision of this Court. Later on, however, leave had been granted by order-dated 29.3.1996.
(2) MR. Rontagi, the learned Additional Solicitor General appearing for the appellant, contended that the judgment in Surjit Ghosh case must be limited to the facts of that case and in the case in hand when a higher forum is available to scrutinise the legality and correctness of the decision of the Chairman-cum-Managing Director (CMD), namely, the Board, it would be meet and proper to direct that an appeal should be presented to the said Board leaving the matter to the Board to take an ultimate decision. It is however conceded before us by the learned Additional Solicitor General that under the Rules governing the conditions of service of the Corporation, the CMD is not the disciplinary authority in respect of the respondent and, in fact, he is the appellate authority and, therefore, undoubtedly a right of appeal which was otherwise available to the respondent, has been denied. It is also stated to us that there is no general provision which confers a power of review or revision to the Board against any order passed by the CMD. In that view of the matter, even if the Board may be a superior authority to the CMD, to hold that an appeal would lie against an order of termination passed by the CMD, it would tantamount to a fresh legislation which we are not inclined to adopt. Necessarily, therefore, a valuable right of appeal having been denied to the delinquent-respondent, in view of the judgment of this Court in Surjit Ghosh case, the order of punishment gets vitiated and the employee-respondent is entitled to a direction for reinstatement and back wages, though the back wages could be limited depending upon the facts and circumstances of the case In the case in hand, a sum of Rs. 50,000.00 has already been.paid to the respondent by virtue of the interim order of this Court dated 23/2/1996 following the direction in the case of SurJit Ghosh (supra)
(3) WE, therefore, while not finding any justification for interfering with the direction for reinstatement, observe that the employee-respondent will not be entitled to any back wage from the date of termination till today excepting the sum of Rs. 50,000.00 which has already been paid to him. He is entitled to his regular salary from today and appointment/posting be given to him at an early date. The civil appeal stands disposed of accordingly. Needless to mention that on reinstatement the employee would get his due seniority and continuity of service.
(4) THE learned Additional Solicitor Gen eral also informed us that the employee himself has sought for voluntary
