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IN THE HIGH COURT OF CALCUTTA
Subhro Kamal Mukherjee, Nishita Mhatre and Harish Tandon, JJ.
Md. Harul Al Rasid – Petitioner
Versus
Union of India and Others – Respondents
W.P.C.T. No. 92 of 2011
Decided On : 02-12-2014
For the Petitioner:Achin Kumar Majumder, Advocate.
For the Respondent:Moloy Kumar Das and Aparna Ghosh, Advocates.
A delinquent employee is not entitled to automatic reinstatement upon quashing of disciplinary proceedings due to technicalities or a defective enquiry. Reinstatement depends on the gravity of the misconduct and the applicable service rules or industrial jurisprudence principles.
Headnote:
DISCIPLINARY PROCEEDINGS - REINSTATEMENT - ENTITLEMENT - DEFECTIVE ENQUIRY - SERVICE JURISPRUDENCE - INDUSTRIAL JURISPRUDENCE - KEY PRINCIPLES
Fact of the Case:
The petitioner, a Gangman with the respondents, was suspended pending a disciplinary enquiry. After a defective enquiry, he was dismissed from service. The Tribunal quashed the dismissal order and remanded the matter to the Appellate Authority for fresh consideration. The petitioner sought reinstatement and resumption of duty.
Finding of the Court:
The Court held that a delinquent employee 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 for a de novo enquiry. Reinstatement at that stage depends on the gravity and magnitude of the alleged misconduct.
Issues: 1. Whether a delinquent employee is entitled to be reinstated as a matter of right when a disciplinary enquiry against him is quashed and the matter is remanded for a de novo enquiry?
Ratio Decidendi: 1. In service jurisprudence, reinstatement is not automatic upon quashing of disciplinary proceedings due to technicalities or a defective enquiry. 2. The Court may order a de novo enquiry or completion from the point of defect, depending on the applicable service rules. 3. The employee will remain under suspension during the fresh enquiry unless the service rules warrant reinstatement. 4. In industrial jurisprudence, an employee is not entitled to immediate reinstatement upon a finding of a defective enquiry. 5. The employer can lead evidence before the industrial adjudicator to prove the charges against the employee. 6. Reinstatement will only occur if the employer fails to prove the charges before the industrial adjudicator.
Final Decision: The Court answered the referred question, holding that a delinquent is not entitled to reinstatement as a matter of right when a disciplinary enquiry is quashed and remanded for a de novo enquiry. The relief of reinstatement at that stage is dependent on the gravity and magnitude of the alleged misconduct.
Nishita Mhatre, J.
1. The following question has been referred to us for determination:
"When a disciplinary proceeding is quashed including the order of dismissal from service and the matter is remanded back to the Disciplinary Authority for starting the proceeding de novo from the stage of enquiry would the delinquent be entitled to be reinstated and be allowed to join their duty as a matter of right?"
2. The brief facts which have given rise to the aforesaid question in the present case are as follows:-
The petitioner was suspended pending a disciplinary enquiry which was to be held against him on 26th December, 2001. A charge-sheet was issued to him alleging that he had submitted false certificates and documents in order to procure employment as a Gangman with the respondents. The petitioner submitted a representation to the authorities to provide him with documents which were relevant for effectively defending himself. On conclusion of the evidence before him, the Enquiry Officer submitted his findings on 23rd December, 2003. The Enquiry Officer held that the petitioner was guilty of the charges levelled against him. A second show cause notice was issued to the petitioner on 3rd September, 2004 directing him to show cause as to why the punishment of dismissal should not be imposed on him. The petitioner's reply to the show cause notice was not accepted by the respondents and he was removed from service on 23rd February, 2005. The appeal preferred by the petitioner was rejected by the Appellate Authority on 21st April, 2005. The petitioner and two other employees who were dismissed for the same acts of misconduct, approached the Administrative Tribunal to challenge the order of dismissal issued against each of them by filing three separate applications. The three applications being O.A. 810 of 2005, O.A. 811 of 2005 and O.A. 812 of 2005 were decided by a common order on 3rd June, 2010 by the Tribunal. The Tribunal quashed and set aside the order of removal and remanded the matters to the Appellate Authority for fresh consideration.
3. The other employees, whose applications were decided along with the petitioner's application, approached this Court by filing WPCT 245 of 2010. The Division Bench of this Court (P.K. Chattopadhyay and A.K. Dasadhikari, JJ.) disposed of the writ petition by remanding the matter to the disciplinary authority and directing it to take a fresh decision in the matter from the stage of completion of the enquiry proceedings. The Division Bench also directed that since the order of dismissal was quashed, the employees should be permitted to resume duty immediately. It further directed that other consequential benefits should be granted to the employee within three weeks from the date of communication of the order.
4. In the present case, another Division Bench (A.K. Banerjee and Dr. M.K. Chaudhuri, JJ.), held that it was not possible to agree with the observations of the earlier Division Bench that the delinquent employee should be permitted to resume duty because the order of dismissal was quashed. The Division Bench has concurred with the view of the earlier Division Bench that the Tribunal ought to have remanded the matter to the Disciplinary Authority. However it has held that it was not possible to accept the direction of the earlier Division Bench to permit the delinquent employee to resume duty when the disciplinary enquiry has been set aside because there were irregularities in the decision making process. The Division Bench observed that considering the gravity of the charges it would not be proper to permit the petitioner to resume duty. As the Division Bench differed with the view taken by the earlier Division Bench, the aforesaid question has been referred to us for adjudication.
5. The Administrative Tribunal has been empowered to deal with the service matters in relation to employees of the State Government or Central Government or of local authority or a corporation or society owned
