1. Dismissal from service under Article 311(2) proviso (b) of the Constitution of India — Dispensing with departmental inquiry — Challenge to validity of dismissal order. (Para 1 )
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1997 Supreme(SC) 48
SUPREME COURT OF INDIA
J S Verma, S P Kurdukar
STATE OF ORISSA AND OTHERS, APPELLANTS
VERSUS
DINABANDHU BEHETA AND OTHERS, RESPONDENTS.
Civil Appeals No. 79 of 1992 with Nos. 3913 of 1994, 80 to 83 of 1992, decided on January 14, 1997.
Important Points
The Court held that exercising the power under proviso (b) to clause (2) of Article 311 of the Constitution requires the authority to record reasons in writing for dispensing with an inquiry. Absence of such recorded reasons invalidates the dismissal, though the employer may still conduct a formal inquiry.
Subject
Employment Law - Dismissal and Reinstatement
Act Referred
Headnote
Constitution of India,1950 – Article 311(2)(b) - Departmental inquiry - Alleged Unruly conduct - An order was passed dismissing respondents from service exercising power contained in proviso (b) to clause (2) of Article 311 of the Constitution of India - This action was taken on basis of alleged unruly conduct of respondents along with some others as mentioned in order of termination passed by Commandant - Order merely stated that in facts and circumstances of case it was not reasonably practicable to hold a departmental inquiry and, therefore, requirement of inquiry was dispensed with - Tribunal by the impugned judgment , has quashed dismissal orders taking the view that conditions precedent for invoking power in proviso (b) to clause (2) of Article 311 were not shown to be satisfied - Hence, these appeals by special leave - Perusal of dismissal order indicates that there is no mention of reasons required to be recorded by authority in writing to permit exercise of power under proviso (b) to clause (2) of Article 311 - There is no other material produced by appellant to show that requisite reasons were recorded by that authority in writing elsewhere - In such a situation, conclusion reached by Tribunal that this power was not available to dispense with inquiry cannot be faulted - Tribunal has, however, also directed reinstatement in service of respondents and payment of entire back wages to them - However, during pendency of these appeals the operation of the Tribunals order was stayed - Accordingly, respondents have not as yet been reinstated or paid any back wages - Question is of any appropriate order to be made in these circumstances – Held, It is clear that above defect resulting in the quashing of the dismissal orders does not deprive appellant of the authority to hold an inquiry into alleged misconduct and to take necessary consequential a actions depending on the outcome of that inquiry - This aspect appears to have been overlooked by Tribunal while directing reinstatement with back wage - It is, therefore, necessary to set aside this part of direction given by Tribunal - While setting aside this further direction of Tribunal, court make it clear that it is open to appellant to hold an inquiry into allegations of misconduct and to pass necessary consequential orders depending on outcome of that inquiry - Final result of that inquiry will determine the relief, if any, to which respondents would be entitled even in respect of payments, if any, for the entire period - Appeals are partly allowed.
Legal Category Hierarchy
Table of Contents
2. Whether the conditions precedent for invoking the power to dispense with an inquiry under Article 311(2) proviso (b) were satisfied. (Para 1 )
3. The dismissal order failed to record the requisite reasons in writing for dispensing with the inquiry, rendering the exercise of power under Article 311(2) proviso (b) invalid. (Para 2 )
4. Quashing a dismissal order for failure to record reasons for dispensing with an inquiry does not preclude the authority from conducting a fresh inquiry into misconduct. (Para 3 )
5. Appeals partly allowed — Dismissal orders quashed — Reinstatement and back wages set aside — Authority permitted to conduct fresh inquiry within two months. (Para 3 , 4 , 5 )
6. What is the requirement for dispensing with an inquiry under Article 311(2) proviso (b) of the Constitution of India?
The authority must record the reasons in writing for permitting the exercise of power to dispense with the departmental inquiry. (Para 2 )
7. Does the quashing of a dismissal order due to procedural defects in dispensing with an inquiry prevent a fresh inquiry?
No, a defect resulting in the quashing of dismissal orders does not deprive the authority of the power to hold a fresh inquiry into the alleged misconduct and take consequential actions. (Para 3 )
8. How is the relief of reinstatement and back wages affected if a fresh inquiry is permitted after a dismissal order is quashed?
The final result of the fresh inquiry determines the relief, including payments for the intervening period, to which the employees are entitled. (Para 3 )
ORDER
1. An order dated 16-6-1983 was passed dismissing the respondents from service exercising the power contained in proviso (b) to clause (2) of Article 311 of the Constitution of India. This action was taken on the basis of the alleged unruly conduct of the respondents along with some others from 1-5-1983 to 5-5-1983 as mentioned in the order of termination passed by Commandant, OSAP 4th Bn., Rourkela. The order merely stated that in the facts and circumstances of the case it was not reasonably practicable to hold a departmental inquiry and, therefore, the requirement of inquiry was dispensed with. The Tribunal by the impugned judgment (s) dated 18-6-1990 etc. has quashed the dismissal orders taking the view that the conditions precedent for invoking the power in proviso (b) to clause (2) of Article 311 were not shown to be satisfied. Hence, these appeals by special leave.
2. A perusal of the dismissal order dated 16-6-1983 indicates that there is no mention of the reasons required to be recorded by the authority in writing to permit exercise of the power under proviso (b) to clause (2) of Article 311. There is no other material produced by the appellant to show that the requisite reasons were recorded by that authority in writing elsewhere. In such a situation, the conclusion reached by the Tribunal that this power was not available to dispense with the inquiry cannot be faulted. The Tribunal has, however, also directed reinstatement in service of the respondents and payment of the entire back wages to them. However, during pendency of these appeals the operation of the Tribunals order was stayed. Accordingly, the respondents have not as yet been reinstated or paid any back wages. The question is of any appropriate order to be made in these circumstances.
3. It is clear that the above defect resulting in the quashing of the dismissal orders does not deprive the appellant of the authority to hold an inquiry into the alleged misconduct and to take the necessary consequential a 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. The final result of that inquiry will determine the relief, if any, to which the respondents would be entitled even in respect of the payments, if any, for the entire period.
4. These appeals are partly allowed in the above terms.
5. In view of the lapse of a long period by now, we also direct that necessary action to proceed with the inquiry would be commenced by the appellant State of Orissa within two months, failing which the respondents would be entitled to the relief of reinstatement with back wages as directed by the Tribunal.
