IMPORTANT POINT
Even if the witnesses examined earlier were not produced for cross examination, there should not be any reinstatement but the proceedings should continue from the stage where it stood before the alleged vulnerability surfaced.

Judgment

Dr. Arijit Pasayat, J. —

1. Heard learned counsel for the parties.

2. Leave granted.

3. Challenge in this appeal is to the Judgment of a Division Bench of the Gauhati High Court dismissing the writ appeal filed by the appellants.

4. Challenge in the writ appeal was to the Judgment and Order dated 04.12.2003 passed by learned Single Judge directing re-instatement of the writ petitioner (respondent herein) in service without payment of back wages. The reasons for which learned single Judge interfered with the Order of dismissal from service was that the witnesses examined earlier were not produced for cross examination. Punishment was awarded by the Disciplinary Authority by taking into account the report submitted by the enquiry officer recording establishment of charges. The Division Bench concurred with the findings of the learned Single Judge.

5. In support of the appeal learned counsel for the appellant submitted that the view taken by learned Single Judge and the Division Bench is contrary to what has been stated by this Court in several cases. Learned counsel for the respondent, on the other hand, submitted that because the requisite principles of natural justice were not followed, learned single Judge and the Division Bench had passed the Orders in favour of the respondent-writ petitioner.

6. In Hiran Mayee Bhattacharyya Vs. Secretary, S.M. School for Girls and Ors.,1 (2002 (10) SCC 293) this Court has observed as follows :

“We, therefore, direct the disciplinary authority to furnish a copy of the enquiry report to the appellant and then permit her to submit her representation/explanation to the same and pass final Orders thereafter. However, this will not lead to reinstatement or to back wages inasmuch as this Court had decided in the case of Managing Director, ECIL, Hyderabad Vs. B. Karunakar (1993 (4) SCC 737) that there need be no reinstatement nor back wages need be paid when the Court directs that the principles of natural justice should be followed. We, therefore, remit the matter to the disciplinary authority, being Secretary, Shibarampur Madhyamik High School for Girls, Shibarampur, Calcutta 700061 for the aforesaid purposes. The termination Order already passed will remain, but subject to the result of the fresh consideration as directed above”.

7. Similarly, in U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Anr.,2 (2005 (8) SCC 264), it was noted as follows :

“The residual question is what would the appropriate direction in such a case. Stand of the employer is that it could have justified the Order of termination by adducing any evidence even if it was held that there was some defect in the departmental proceedings. The solution is found in what was stated by this Court in Managing Director, ECIL v. B. Karunakar, [1993] 4 SCC 737. In paragraph 31, it was observed as follows :

“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 non-supply of the report. If 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 opportunit