Jharkhand High Court
Vidya Bharti Chinmaya Vidyalaya vs Subra Palit on 18 March, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
2026:JHHC:7564-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.C. (DB) Case No.02 of 2018
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1. Vidya Bharti Chinmaya Vidyalaya, Telco Colony, P.O. & P.S.
Telco, Town - Jamshedpur, District- East Singhbhum, Pin-
831004 (Jharkhand), Through its Chairman Sri Manas
Kumar Mishra, aged about 56 years, son of Sri Saroj Kumar
Mishra, residing at House No. 2, River View Enclave, Telco
Colony, P.O. & P.S.- Telco, Town - Jamshedpur, District-
East Singhbhum, (Jharkhand).
2. Vidya Bharti Chinmaya Vidyalaya, Telco Colony, P.O. & P.S.-
Telco, Town - Jamshedpur, District- East Singhbhum, Pin
831004 (Jharkhand), Through its Secretary Sri Vishnu
Chandra Dixit, aged about 47 years son of Sri Prakash Dixit,
residing at 554, Alok Nanda Tower, Alok Vihar, P.O. & P.S.-
Govindpur, Town Jamshedpur, District- East Singhbhum
(Jharkhand).
... ... Appellants
-Versus-
Subra Palit, wife of Mr. S.K. Palit, resident of L-4/6, Cross Road,
10-A, P.O. & P.S. - Telco, Town - Jamshedpur, District East
Singhbhum, Pin-831004 (Jharkhand).
... ... Respondent
------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
-----
For the Appellants : Mrs. Rashmi Kumar, Advocate
: Ms. Mahi, Advocate
For the Respondent : Mr. Saurav Arun, Advocate
: Mr. Abhishek Sinha, Advocate
---------
Order No.30/Dated : 18th March, 2026
Per Sujit Narayan Prasad, J :
1. The instant appeal is under Section 15 of the Jharkhand
Education Tribunal Act, 2004 directed against the judgment
dated 03.08.2018 passed in A.C. (SB) No.15 of 2014 whereby
and whereunder the appeal has been dismissed upholding the
judgment passed by the Jharkhand Education Tribunal dated
01.09.2014 by which while allowing the appeal, the order of
termination passed by the Chairman, Vidya Bharti Chinmaya
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Vidyalaya, Jamshedpur has been set aside with a direction
upon the Management of the School to reinstate the petitioner
(respondent herein) in service with 50% back wages and
consequential benefits to which she would have been entitled
had she not been unlawfully thrown out from service.
The said back wages have been directed to be paid within
a period of three months from the date of passing of the said
judgment and further the direction was passed for physical
reinstatement in service within two weeks from the date of
passing of the judgment.
2. The brief facts of the case require to be enumerated
herein as per the pleading made before the Jharkhand
Education Tribunal (hereinafter referred as the Tribunal).
3. It is the case of the respondent (applicant before the
tribunal) that she was appointed as primary teacher on
01.04.2006. She was put under suspension in contemplation
of the domestic enquiry. An enquiry officer was appointed after
service of memorandum of charge so as to provide an
opportunity to defend her case.
4. The Enquiry Officer has concluded the enquiry and found
the charges to be proved. The enquiry report has been
forwarded before the disciplinary authority. The disciplinary
authority has issued the show cause along with the copy of the
enquiry report and after following the procedure which was to
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be followed at that stage, the order of termination dated
08.06.2010 was passed.
5. The respondent has challenged the said order of
termination before the Jharkhand Education Tribunal, Ranchi
on the ground of violation of principle of natural justice by
taking the plea that the place of enquiry has been changed
without any information to the concerned delinquent and the
first charge pertaining to implication in the criminal case has
resulted into acquittal by the competent court of criminal
jurisdiction.
6. Specific plea was taken that one witness, namely, Shri S.
Velu, a teacher working in the school, has been made a
management witness and his statement was recorded by the
Enquiry Officer but subsequently he was not placed before the
Enquiry Officer for his cross-examination even then the
content of the statement in support of the charge has been
accepted by the Enquiry Officer.
7. The learned Tribunal has called upon the Management.
The Management has filed a detailed counter affidavit denying
the aspersion so made of violation of principle of natural
justice, rather, the ground has been agitated therein that all
efforts had been taken to provide an opportunity of hearing
said to be sufficient and adequate and it is the delinquent who
has not availed that opportunity, reason best known to her.
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8. The ground has been taken that at the belated stage the
requisition was made to defend through Advocate and the said
request was rejected on the pretext that the requisition for
defending through an Advocate ought to have been made at
the inception but making it at the belated stage is nothing but
delaying tactics of the delinquent employee.
9. The learned Tribunal has appreciated the fact in entirety
and has passed an order by considering the issue of violation
of principle of natural justice, non-engagement of an Advocate,
not presenting Shri S. Velu for his cross-examination to be
carried out by the delinquent in course of enquiry and has
come to the specific finding that the domestic enquiry cannot
be said to be fair and as such, the order of termination has
been said to be improper and illegal and in consequence
thereof, the order of termination passed by the Chairman has
been quashed and set aside with a direction of making
payment of 50% back wages to be carried out within a period
of three months. However, separate direction has been issued
for physical reinstatement in service within two weeks from
the date of passing of the judgment holding the petitioner
entitled to all consequential benefits of her continuous service.
The operative part of the order is being referred herein :-
“30. Accordingly, the petition is allowed and the order
of termination passed by the Chairman is set aside
and the petitioner is reinstated in service with 50% of
back wages and consequential benefits to which she
would have been entitled had she not been unlawfullyPage 4
2026:JHHC:7564-DBthrown out from service. The back wages payable to
the petitioner shall be paid to her within 3 (three)
months from today. The petitioner shall be physically
reinstated in service within two weeks from today.
The petitioner will be entitled to all consequential
benefits of her continuous service.”
10. The Management, the appellant herein, has challenged
the order passed by the learned Tribunal before this Court by
filing appeal being A.C.(SB) No.15 of 2014. The matter was
heard by learned Single Judge of this Court.
11. The respondent has been called upon, who has defended
the case on merit by defending the order passed by the learned
Tribunal and has also brought to the notice of the learned
Single Judge regarding the irregularity said to be committed
in course of enquiry, particularly, the violation of principle of
natural justice and not allowing the important Management
Witness, Shri S. Velu, for his cross-examination.
12. The leaned Single Judge has considered the fact in
entirety and has come to the conclusive finding as would be
evident from paragraph 10 thereof wherein it has been
referred, charge-wise, i.e., the first charge it has been found to
be proved only on the basis of F.I.R. filed before the Enquiry
Officer, without examining any evidence, since the delinquent
has been acquitted in the said criminal case and, as such, the
said charge has been said to be not proved having not been
taken into consideration by the Enquiry Officer.
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13. The second charge has been taken to be proved based
upon the typed examination-in-chief of the witness of the
school/management who has not been allowed to be cross-
examined by not allowing the said witness to participate in the
proceeding.
14. Learned Single Judge, based upon the aforesaid
infirmities in the enquiry, has upheld the judgment passed by
the learned Tribunal.
15. The judgment passed by the learned Single Judge is the
subject matter of the present appeal.
Argument advanced on behalf of the appellant
16. Mrs. Rashmi Kumar, learned counsel appearing for the
appellant Management, has taken the following grounds :-
(i) The learned Single Judge has not taken into
consideration the fact that there is no violation of
principle of natural justice as was agitated before the
Tribunal at paragraph 13 and 14 of the counter
affidavit wherein the fact has been brought to the
notice of the learned Tribunal that the ample
opportunity was tried to be given to the delinquent but
it is the delinquent who has not availed the same,
rather at the fag end of the proceeding, has made a
requisition for defending her case through an
Advocate. The requisition so made was rejected being
agitated at the fag end.
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(ii) It has been contended that the delinquent has also
been allowed to contest the case before the Enquiry
Officer but for one reason or the others, the
opportunity has not been availed and the ground was
taken before the adjudicatory forum for violation of
principle of natural justice.
(iii) So far as the question of non-examination of one
witness, namely Shri S. Velu, is concerned, the
argument has been advanced that no prejudice has
been caused since typed copy of the examination-in-
chief was already supplied to the delinquent and,
hence, she could have defended from the said
document.
(iv) The argument has been advanced that even accepting
that there is violation of principle of natural justice
then the proper course would have been by the
adjudicatory forum to remit the matter before the
Management to initiate the proceeding afresh from the
stage of enquiry after providing an opportunity of
hearing to meet out the ground of violation of principle
of natural justice, but having not done so, serious
infirmity has been committed by the learned Tribunal,
which has not been taken into consideration by the
learned Single Judge of this Court.
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(v) The ground has been taken on the issue of the
direction of 50% back wages which cannot be said to
be just and proper since no evidence is there of gainful
employment.
17. Learned counsel, in order to support the argument, has
relied upon the following judgments :-
(i) The State of Uttar Pradesh & Ors. V. Prabhat
Kumar, 2022 LiveLaw (SC) 736
(ii) State of Uttar Pradesh & Ors. V. Rajit Singh,
(2022) 15 SCC 254
(iii) Management of Regional Chief Engineer, Public
Health and Engineering Department, Ranchi v.
Their Workmen represented by District Secretary,
(2019) 18 SCC 814
Argument advanced on behalf of the respondent
18. Per contra, Mr. Saurav Arun, learned counsel appearing
for the respondent, has taken the following grounds in
defending the judgment passed by the learned Tribunal and
the judgment passed by the learned Single Judge of this Court.
(i) It has been submitted that in a case of departmental
enquiry, the principle of natural justice has important
bearing, since, the memorandum of charge which is to
be served to the delinquent employee is for the purpose
of separating the delinquent employee from service in
order to end the jural relationship. Since, an adverse
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decision is decided to be taken against the delinquent,
hence, the same cannot be allowed to be carried out
without providing an opportunity said to be adequate
and sufficient to the delinquent.
(ii) It has been submitted that the fact about making
requisition for engagement of an Advocate even though
at belated stage but the basis which has been taken
by the disciplinary authority and even by the Enquiry
Officer in course of the conclusion of domestic enquiry,
that the Management witness, namely, Shri S. Velu,
has been examined in support of the memorandum of
charge but he has not been allowed by the Enquiry
Officer to cross-examine on the pretext that some
threatening was given by the delinquent and, as such,
he was not in a position to participate in the enquiry
proceeding.
(iii) The submission has been made that if the
Management is intending to prove the memorandum
of charge on the basis of presenting a witness, then it
is bounden duty of the Management to secure the
appearance of such witness for cross-examination and
if the cross-examination is not being allowed to be
carried out, certainly the serious prejudice will be said
to be caused to the delinquent due to non-cross-
examination of the said witness-MW-1 which has been
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made basis of the order of termination by the
Management.
(iv) On the issue of remand, the argument has been
advanced that the memorandum of charge was served
way back in November, 2009 and since then more
than 17 years have already lapsed and, as such, after
lapse of 17 years if the matter would be remitted before
the Management for initiating de novo enquiry, that
will not be said to be just and proper that too when the
said error has been committed by the disciplinary
authority.
(v) On the issue of back wages, it has been submitted that
since the order of termination has been held to be
unjust and improper which itself suggests that the
delinquent was willing to discharge the duty but it is
the Management who has forcibly not allowed to
discharge the duty and in that context the principle of
‘no work no pay’ will not be applicable.
Analysis and Consideration
19. We have heard learned counsel for the parties.
20. This Court, on consideration of the argument advanced
on behalf of the parties and after going through the order
passed by the learned Tribunal and the learned Single Judge,
requires to consider the following issues :-
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(i) Whether the view taken by the learned Tribunal on the
issue of violation of principle of natural justice on the
ground of not allowing the Management witness to be
cross-examined by the delinquent in course of
domestic enquiry if has been accepted to be violation
of principle of natural justice, can such finding be said
to suffer from an error?
(ii) The learned Tribunal has come to the conclusion of
unfairness of the domestic enquiry on the ground of
not providing adequate and sufficient opportunity to
the delinquent which has been made basis of the order
of termination, but if the domestic enquiry itself has
been held to be unfair, then the order of termination if
has been quashed and set aside with a direction of
reinstatement, can it be said to suffer from an error?
(iii) Whether after lapse of about 17 years, if the matter
will be remitted before the Management to initiate a
proceeding de novo can it be said to be just and proper
that too if the error lies on the part of the
Management?
(iv) Whether the finding recorded by the Tribunal of
holding the delinquent entitled for 50% back wages on
the pretext of the fact that the order of termination has
been found to be per se improper can it be said to
unjustified?
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21. All the issues, on facts herein, since are interlinked, as
such, are being taken up together for its consideration.
22. This Court, before considering the aforesaid issues, once
again, at the risk of brevity, is referring the admitted facts
herein which have been admitted by the parties in course of
argument on the basis of the documents available on record :-
(i) The delinquent employee (respondent herein) was
appointed as a teacher on 01.04.2006 in the
concerned school, the appellant herein. She was put
under suspension in contemplation of domestic
enquiry while the memo issued in this regard on
09.11.2009.
(ii) The Management thereafter has decided to initiate the
disciplinary proceeding and decided to serve the
memorandum of charge dated 12.11.2009 imputing
the following allegations against the delinquent :-
58(1) Participating in or inciting others to participate in
activities detrimental to the school’s interest 08(3)”Any act
or disorderly or indecent behaviour or any act subversive
to discipline”
68(1) Wilful violation of any of the rules of the service
conditions set forth therein” read with Clause 21. An
employee shall at all times conduct himself soberly and
decently.”
Brief description of the incidents corresponding to the acts
of misconduct as stated above:-
It has also come to the notice of the School Management
that Telco PS Case No.371/2009 dated 07.11.2009 u/sPage 12
2026:JHHC:7564-DB341,342,344 ,323,2 324, 307,368,370,504,506,34 I.P.C.
and under Section 23 JHWaNES
Juvenile Justice (Care and Protection of Children) Act,
2000 has been registered against you and your husband
Mr. Saumen KumarPalit Prima facie, alleged offences
besides being offence under Indian Penal Code also
constitute offence against human rights It is a matter of
record that the said criminal case has been registered
against you and your husband on the basis of faryad
bayan of the victim Vijay Dehari aged about 13 years S/O
Mantu Dehari of Village Kumar Dubi, P.S. Bersol District
West Singhbhum Jharkhand.
It is further alleged against you that on 12.09.09 you
along with your husband had entered the school premises
and was behaving in an indecent and disorderly manner
in front of the staff of the school on an issue pertaining to
School which was unwarranted.
By exhibiting your behaviour inconsistent with the
dignity of the pious profession to which you belong you
have not only brought the School to disrepute but have
also made yourself liable to be proceeded against for the
misconduct(s) as specified herein above. You are also
aware that any inconsistency in preaching and practice of
a teacher is unacceptable to the society and detrimental to
the interest of the institution.”
(iii) The Enquiry Officer was appointed. It was
communicated to the delinquent for her participation
in the enquiry proceeding. The adjournment, however,
has been sought for on behalf of the delinquent before
the Enquiry Officer but subsequently she has
participated and made a request to allow her to be
defended through an Advocate.
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(iv) The requisition/request to defend through an
Advocate was rejected by the Enquiry Officer.
(v) The enquiry proceeded. The Management has come
out with one witness namely, Shri S Velu. His
statement was recorded by the Enquiry Officer in the
capacity of the Management Witness No.1. He,
however, has supported the memorandum of charge
pertaining to the charge as has been alleged against
the delinquent employee.
(vi) The said M.W.-1 S.Velu has not been produced for his
cross examination by the delinquent.
(vii) The Enquiry Officer has given the finding of charge
having been proved. The finding on the issue of proved
charge is that the institution of F.I.R. against the
delinquent along with her husband and the second
charge regarding the alleged irregularity committed in
course of discharge of duty which was supported by
Shri S. Velu, M.W.-1.
(viii) The enquiry report, after being forwarded by the
Enquiry Officer, has been accepted and thereafter, the
order of termination was passed.
(ix) It is in this background of the factual aspect, the
delinquent has approached the Jharkhand Education
Tribunal, Ranchi challenging the order of termination.
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(x) The Tribunal after appreciating the evidences had
passed an order by considering the issue of violation
of principle of natural justice, non-engagement of an
Advocate, not presenting Shri S. Velu for his cross-
examination to be carried out by the delinquent in
course of enquiry and has held that the domestic
enquiry cannot be said to be fair and as such, the
order of termination has been said to be improper and
illegal and in consequence thereof, the order of
termination passed by the Chairman has been
quashed and set aside with a direction of making
payment of 50% back wages to be carried out within a
period of three months.
(xi) The Management, the appellant herein, has
challenged the order passed by the learned Tribunal
before the learned single Judge of this Court by filing
appeal being A.C.(SB) No.15 of 2014. The matter was
heard by learned Single Judge of this Court.
(xii) The leaned Single Judge has observed that the first
charge has been found to be proved only on the basis
of F.I.R. before the Enquiry Officer, without examining
any evidence and since the delinquent has been
acquitted in the said criminal case and, as such, the
said charge has been said to be not proved having not
been taken into consideration by the Enquiry Officer.
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(xiii) It has further been observed by the learned single
Judge that the second charge has been taken to be
proved based upon the typed examination-in-chief of
the witness of the school/management but the said
witness has not been allowed to be cross-examined.
(xiv) Learned Single Judge, based upon the aforesaid
infirmities in the enquiry, has upheld the judgment
passed by the learned Tribunal, against which the
instant appeal has been filed.
23. This Court is now proceeding to consider the issue in the
backdrop of the aforesaid admitted facts.
24. The first issue of violation of principle of natural justice
has been taken into consideration by the learned Tribunal and
upheld by the learned Single Judge under its appellate
jurisdiction.
25. The principle of natural justice is not a straightjacket
formula, rather, it is to be seen for its observance based upon
the factual aspect.
26. The question of prejudice is the paramount consideration
in the matter of observance of principle of natural justice
which is inbuilt and the same is to be adhered to before taking
any adverse decision leading to civil consequence. However,
depending upon the facts, if no prejudice is being caused, then
the principle of natural justice is not required to be followed.
Such situation can be there if the imputation made against the
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concerned is being admitted or the irregularity or any
allegation if the delinquent is not in a position to dispute on
the basis of admitted fact, then in such circumstances, since
there is no chance of change in the circumstances, the
principle of natural justice is not required to be followed
otherwise the same will be an empty formality and futile
exercise, reference in this regard is to be made to the
judgments rendered by Hon’ble Apex Court in the case of
Escorts Farms Ltd. vs. Commissioner, Kumaon Division,
Nainital, U.P. & others, reported in (2004) 4 SCC 281,
wherein at paragraph no.64 it has been held which reads as
under:-
“64. Right of hearing to a necessary party is a
valuable right. Denial of such right is serious breach
of statutory procedure prescribed and violation of
rules of natural justice. In these appeals preferred by
the holder of lands and some other transferees, we
have found that the terms of government grant did
not permit transfers of land without permission of the
State as grantor. Remand of cases of a group of
transferees who were not heard, would, therefore, be
of no legal consequence, more so, when on this legal
question all affected parties have got full opportunity
of hearing before the High Court and in this appeal
before this Court. Rules of natural justice are to be
followed for doing substantial justice and not for
completing a mere ritual of hearing without
possibility of any change in the decision of the case
on merits. In view of the legal position explained by
us above, we therefore, refrain from remanding these
cases in exercise of our discretionary powers under
Article 136 of the Constitution of India.”
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27. Similarly in Dharampal Satyapal Ltd. v. Deputy
Commissioner of Central Excise, Gauhati and Ors., (2015)
8 SCC 519 wherein their Lordships have held at paragraph-
39 which is being reproduced as under:-
“39. We are not concerned with these aspects in the
present case as the issue relates to giving of notice
before taking action. While emphasizing that the
principles of natural justice cannot be applied in
straitjacket formula, the aforesaid instances are
given. We have highlighted the jurisprudential basis
of adhering to the principles of natural justice which
are grounded on the doctrine of procedural fairness,
accuracy of outcome leading to general social goals,
etc. Nevertheless, there may be situations wherein for
some reason- perhaps because the evidence against
the individual is thought to be utterly compelling- it
is felt that a fair hearing “would make no difference”-
meaning that a hearing would not change the
ultimate conclusion reached by the decisionmaker.”
28. But, vice versa to such situation, particularly, in a case
of disciplinary proceeding, the bearing of the observance of
natural justice is must and without providing an opportunity,
the service of an employee cannot be taken away. The principle
has been dealt with way back after the enactment of The Public
Servants (Enquiries) Act, wherein it has been laid down that
before taking away service of an employee, adequate and
sufficient opportunity is to be provided to the delinquent, for
ready reference, the Public Servants (Enquiries) Act, is being
referred herein :-
Page 18
2026:JHHC:7564-DBTHE PUBLIC SERVANTS (INQUIRIES) ACT, 1850
(37 of 1850)
1st November, 1850.
For regulating inquiries into the behavior of Public
Servants
WHEREAS it is expedient to amend the law for
regulating inquiries into the behavior of public servants not
removable [from their appointments] without the sanction of
Government and to maker the same uniform throughout
[India]. It is enacted as follows:-
Short title, “The Public Servants (Inquiries) Act, 1850” given
by the Public Servants (Inquiries) Act (1850) Amendment Act,
1897 (1 of 1897).
Articles of charge to be drawn out for public inquiry into
conduct of certain public servants
2. Whenever the Government shall be of opinion that three are
good grounds for making a formal and public inquiry into the
truth of any imputation of misbehavior by any person in the
service of [the Government, not removable from his
appointment without the sanction of the Government,] it [may]
cause the substance of the imputations to be drawn into
distinct articles of charge, and [may] order a formal and public
inquiry to be made into the truth thereof.
Authorities to whom inquiry may be committed – Notice
to accused
3. The inquiry may be committed either to the Court, Board or
other authority to which the person accused is subordinate or
to any other person or persons, to be specially appointed by
the Government, commissioners for the purpose: notice of
which commission shall be given to the person accused ten
days at least before the beginning of the inquiry.
Conduct of Government prosecution
4. When the Government shall think fit to conduct the
prosecution, it shall nominate some person to conduct the
same on its behalf.
Charge by accuser to be written and verified-penalty for
false accusation Institution of inquiry by Government.
5 . When the charge shall be brought by an accuser, the
Government shall require the accusation to be reduced to
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writing, and verified by the oath or solemn affirmation of the
accuser; and every person who shall wilfully and maliciously
make any false accusation under the Act, upon such oath or
affirmation, shall be liable to the penalties of perjury; but this
enactment shall not be construed to prevent the Government
from instituting any inquiry which it shall think fit, without
such accusation on oath or solemn affirmation as aforesaid.
Security from accuser left by Government to prosecute
6. Where the imputations shall have been made by an accuser
and the Government shall think fit to leave to him the conduct
of the prosecution, the Government before appointing the
commission shall require him to furnish reasonable security
that he will attend and prosecute the charge thoroughly and
effectually, and also, will be forthcoming to answer any
counter-charge or action which may be afterwards brought
against him for malicious prosecution or perjury or
subordination of perjury, as the case may be.
Power of Government to abandon prosecution and to allow
accuser to continue it
7. At any subsequent stage of the proceedings, the
Government may, if it think fit abandon the prosecution, and
in such case may, if it think fit , on the application of the
accuser, allow him to continue the prosecution, if he is
desirous of so doing, on his furnishing such security as is
hereinbefore mentioned.
Powers of commissioners -Their protection- Service of
their process Powers of Court, etc. acting under
commission
8. The commissioners shall have the same power of punishing
contempts and obstructions to their proceedings, as is given
to Civil and Criminal Court by [ the Code of Criminal
Procedure, 1898,] and shall have the same powers for the
summons of witnesses, and for compelling the production of
documents, and for the discharge of their duty under the
commission, and shall be entitled to the same protection as
the Zila and City Judges, except that all process to cause the
attendance of witnesses or other compulsory process, shall be
served through and executed by the Zila or City Judge in
whose jurisdiction the witness or other person resides, on
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whom the process is to be served, and if he resides within
Calcutta, Madras or Bombay, then through the Supreme
Court of Judicature thereto. When the commission has been
issued to a Court, or other person or persons having power to
issue such process in the exercise of their ordinary authority,
they may also use all such power for the purposes of the
commission.
Penalty for disobedience to process
9. All persons disobeying any lawful process issued as
aforesaid for the purposes of the commission shall be liable to
the same penalties as if the same had issued originally from
the Court or other authority through whom it is executed.
Copy of charge and list to be furnished to accused
10. A copy of the articles of charge, and list of the documents
and witnesses by which each charge is to be sustained shall
be delivered to the person accused, at least three days before
the beginning of the inquiry, exclusive of the day of delivery
and the first day of the inquiry.
Procedure at beginning of inquiry- Non-appearance of
accused and admission of charge
11. At the beginning of the inquiry the prosecutor shall exhibit
the articles of charge to the commissioners, which shall be
openly read, and the person accused shall thereupon be
required to plead “guilty” or “not guilty” to each of them, which
pleas shall be forthwith recorded with the articles of charge. If
the person accused refuses, or without reasonable cause
neglects, to appear to answer the charge either personally or
by his counsel or agent, he shall be taken to admit the truth
of the articles of charge.
Prosecutor’s right of address
12. The prosecutor shall then be entitled to address the
commissioners in explanation of the articles of charge, and of
the evidence by which they are to be proved: his address shall
not be recorded.
Evidence for prosecution and examination of witnesses-
Re-examination by prosecution
13. The oral and documentary evidence for the prosecution
shall then be exhibited; the witnesses shall be examined by or
on behalf of the prosecutor and may be cross-examined by or
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on behalf of the person accused. The prosecutor shall be
entitled to re-examine the witnesses on any points on which,
they have been cross-examined, but not on any new matter,
without leave of the commissioners who also may put such
questions as they think fit.
Power to admit or call for new evidence or prosecution-
Accused’s right to adjournment
14. If it shall appear necessary before the close of the case for
the prosecution, the commissioners may in their discretion
allow the prosecutor to exhibit evidence not included in the
list given to the person accused, or may themselves call for
new evidence; and in such case the person accused shall be
entitled to have, if he demands it, an adjournment of the
proceedings for three clear days, before the exhibition and of
the adjournment and of the day to which he proceedings are
adjourned.
Defence of accused-To be recorded only when written.
15. When the case for the prosecution is closed, the person
accused shall be required to make his defence, orally or in
writing as he shall prefer. If made orally, it shall not be
recorded, if made in writing, it shall be recorded, after being
openly read, and in that case a copy shall be given at the same
time to the prosecutor.
Evidence for defence and examination of witnesses
16. The evidence for the defence shall then be exhibited, and
the witnesses examined, who shall be liable to cross-
examination and re-examination and to examination by the
commissioners according to the like rules as the witnesses for
the prosecution.
17. [Examination of witnesses and evidence by prosecutor.]
Repealed by the Repealing Act, 1876 (12 of 1876). Section 2
and Schedule, Part I.
Notes of oral evidence
18. The commissioners or some person appointed by them
shall take notes in English of all oral evidence which shall be
read aloud to each witness by whom the same was given, and,
if necessary, explained to him in the language in which it was
given, and shall be recorded with the proceedings.
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Inquiry when closed with defence-Prosecutor when
entitled to reply and given evidence-Accused not entitled
to adjournment
19. It the person accused makes only an oral defence, and
exhibits no evidence, the inquiry shall end with his defence; if
he records a written defence, or exhibits evidence, the
prosecutor shall be entitled to a general oral reply on the whole
case; and may also exhibit evidence to contradict any evidence
exhibited for the defence, in which case the person accused
shall not be entitled to any adjournment of the proceedings,
although such new evidence were not included in the list
furnished to him.
Power to require amendment of charge and to adjourn-
Reason for refusing adjournment to be recorded
20. When the commissioners shall be of opinion that the
articles of charge, or any of them are not drawn with sufficient
clearness and precision, the commissioners may, in their
discretion, require the same to be amended, and may
thereupon, on the application of the person accused, adjourn
the inquiry for a reasonable time. The commissioners may
also, if they think fit, adjourn the inquiry from time to time,
on the application of either the prosecutor or the person
accused, on the ground of sickness or unavoidable absence of
any witness or other reasonable cause. When such application
is made and refused, the commissioners shall record the
application, and their reason for refusing to comply with it.
Report of commissioners’ proceedings
21. After the close of inquiry the commissioners shall
forthwith report to Government their proceedings under the
commission, and shall send with the record thereof their
opinion upon each of the articles of charge separately, with
such observations as they think fit on the whole case.
Power to call for further evidence or explanation-Inquiry
into additional articles of charge- Reference of report of
special commissioners’ final orders.
22. The Government, on consideration of the report of the
commissioners, may order to take further evidence, or give
further explanation of their opinions. It may also order
additional articles of charge to be framed, in which case the
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inquiry into the truth of such additional articles shall be made
in the same manner as is herein directed with respect to the
original charges. When special commissioners have been
appointed, the Government may also, if it thinks fit refer the
report of the commissioners to the Court or other authority to
which the person accused is subordinate, for their opinion on
the case; and will finally pass such orders thereon as appear
just and consistent with its powers in such cases.
Definition of “Government”
‘[23. In this Act, “the Government” means the Central
Government in the case of persons employed under that
Government and the [State] Government in the case of
persons employed under that Government].
Saving of enactments as to dismissal of certain officers –
Commission under Act for their trial
24. Nothing in this Act shall be construed to repeal any Act or
Regulation in force for the suspension or dismissal of Principal
and other Sadr Amins or of Deputy Magistrates or Deputy
Collectors, but a commission may be issued for the trial of any
charge against any of the said officers, under this Act, in any
case in which the Government shall think it expedient.
Saving of power of removal without inquiry under Act
25. Nothing in this Act shall be construed to affect the
authority of Government, for suspending or removing any
public servant for any cause without an inquiry under this
Act.
29. The reference of the Public Servants (Enquiries) Act, 1850
is necessary herein, since one of the arguments of the learned
counsel for the appellant is that in the bylaws there is no
provision to provide an opportunity of hearing.
30. This Court is of the view that whether it has been
provided in the bylaws or not is immaterial, rather, the
observance of principle of natural justice since has been held
to be inbuilt and hence, it is mandatorily to be followed. At this
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juncture, reference of the judgment rendered by the
Constitution Bench of Hon’ble Apex Court in the case of
Maneka Gandhi vs. Union of India and Anr., (1978) 1 SCC
248 is required to be made. The relevant paragraph is being
reproduced hereinbelow :-
“221. It is well established that even where there is no specific
provision in a statute or rules made thereunder for showing cause
against action proposed to be taken against an individual, which
affects the rights of that individual, the duty to give reasonable
opportunity to be heard will be implied from the nature of the
function to be performed by the authority which has the power to
take punitive or damaging action. This principle was laid down by
this Court in the State of Orissa v. Dr (Miss) Binapani Dei [AIR
1967 SC 1269, 1271] in the following words:
“The rule that a party to whose prejudice an order is
intended to be passed is entitled to a hearing applies alike
to judicial tribunals and bodies of persons invested with
authority to adjudicate upon matters involving civil
consequences. It is one of the fundamental rules of our
constitutional set-up that every citizen is protected against
exercise of arbitrary authority by the State or its officers.
Duty to act judicially would, therefore arise from the very
nature of the function intended to be performed: it need
not be shown to be superadded. If there is power to decide
and determine to the prejudice of a person, duty to act
judicially is implicit in the exercise of such power. If the
essentials of justice be ignored and an order to the
prejudice of a person is made, the order is a nullity. That
is a basic concept of the rule of law and importance thereof
transcends the significance of a decision in any particular
case.”
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31. The fact of the case of Maneka Gandhi vs. Union of
India and Anr. (Supra) was that Section 10 of the Passport
Act, 1967 was under challenge which pertains to impounding
of the passport having not provided with a provision to provide
for an opportunity before impounding the passport and on that
ground the validity of Section 10 of the Passport Act, 1967 was
challenged.
32. The Hon’ble Apex Court has refused to hold that
provision to be invalid, however, has laid down that even
though there is no reference to provide an opportunity to the
party concerned who is going to be adversely affected leading
to civil consequence even then the cardinal principle of natural
justice will be said to be inbuilt in that provision.
33. Herein also, what has been argued that there is no
provision in the bylaws to provide for an opportunity of natural
justice. Even though that is not available in the bylaws even
then it is mandatorily required to provide an opportunity said
to be sufficient and adequate.
34. The said argument of the mangment/appellant is also
misconceived for the reason that if bylaws does not contain a
provision to provide principle of natural justice, then for what
purpose the domestic enquiry was initiated. The purpose is to
provide an opportunity to the delinquent and once it has been
provided then it should be sufficient and adequate.
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35. Adverting to the facts of the case, we are not much
concerned on the issue of not allowing the delinquent to
engage the Advocate, rather, we are much concerned with the
entire case was based upon the evidence of one witness of the
Management, namely, Shri S. Velu, M.W.-1. The M.W.-1, Shri
S. Velu who has supported the alleged charge against the
delinquent but he was not allowed to be cross-examined by the
delinquent, being not brought before the Enquiry Officer in
course of the domestic enquiry.
36. It needs to refer herein that the meaning of adequate and
sufficient opportunity impliedly means that at the time of
serving the charge-sheet the documents in support thereof is
mandatorily to be supplied.
37. It requires to refer herein that in the case of State of
Uttar Pradesh and others vs. Saroj Kumar Sinha, (2010)
2 SCC 772, wherein it has been laid down at paras-29 and 30
that it is a basic requirement of the rules of natural justice
that an employee be given a reasonable opportunity to defend
himself in any proceedings which may culminate in
punishment being imposed on the employee. The rules of
natural justice are required to be observed to ensure not only
that justice is done but is manifestly seen to be done. The
object of rules of natural justice is to ensure that a government
servant is treated fairly in proceedings which may culminate
in imposition of punishment including dismissal /removal
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from service. For ready reference the relevant paragraphs of
the aforesaid judgment are being quoted as under:
“28. An inquiry officer acting in a quasi-judicial authority
is in the position of an independent adjudicator. He is not
supposed to be a representative of the
department/disciplinary authority/Government. His
function is to examine the evidence presented by the
Department, even in the absence of the delinquent official
to see as to whether the unrebutted evidence is sufficient
to hold that the charges are proved. In the present case
the aforesaid procedure has not been observed. Since no
oral evidence has been examined the documents have not
been proved, and could not have been taken into
consideration to conclude that the charges have been
proved against the respondents.
29. Apart from the above, by virtue of Article 311(2) of the
Constitution of India the departmental enquiry had to be
conducted in accordance with the rules of natural justice.
It is a basic requirement of the rules of natural justice that
an employee be given a reasonable opportunity of being
heard in any proceedings which may culminate in
punishment being imposed on the employee.
30. When a departmental enquiry is conducted against the
government servant it cannot be treated as a casual
exercise. The enquiry proceedings also cannot be
conducted with a closed mind. The inquiry officer has to
be wholly unbiased. The rules of natural justice are
required to be observed to ensure not only that justice is
done but is manifestly seen to be done. The object of rules
of natural justice is to ensure that a government servant
is treated fairly in proceedings which may culminate in
imposition of punishment including dismissal/removal
from service.
31. In Shaughnessy v. United States [97 L Ed 956 : 345
US 206 (1952)] (Jackson, J.), a Judge of the United States
Supreme Court has said: (L Ed p. 969) “… ProceduralPage 28
2026:JHHC:7564-DBfairness and regularity are of the indispensable essence of
liberty. Severe substantive laws can be endured if they are
fairly and impartially applied.”
38. It needs to refer herein that in the case of State of U.P.
v. Shatrughan Lal, (1998) 6 SCC 651 the Hon’ble Apex
Court has observed that in departmental proceedings where
charge-sheet is issued and the documents which are proposed
to be utilised against that person are indicated in the charge-
sheet but copies thereof are not supplied to him in spite of his
request, and he is, at the same time, called upon to submit his
reply, it cannot be said that an effective opportunity to defend
was provided to him, for ready reference the relevant
paragraph of the aforesaid judgment are being quoted as
under:
“4.Now, one of the principles of natural justice is that a
person against whom an action is proposed to be taken
has to be given an opportunity of hearing. This
opportunity has to be an effective opportunity and not a
mere pretence. In departmental proceedings where
charge-sheet is issued and the documents which are
proposed to be utilised against that person are indicated
in the charge-sheet but copies thereof are not supplied to
him in spite of his request, and he is, at the same time,
called upon to submit his reply, it cannot be said that an
effective opportunity to defend was provided to him.
(See: Chandrama Tewari v. Union of India [1987 Supp
SCC 518 : 1988 SCC (L&S) 226 : (1987) 5 ATC 369 : AIR
1988 SC 117] ; Kashinath Dikshita v. Union of
India [(1986) 3 SCC 229 : 1986 SCC (L&S) 502 : (1986) 1
ATC 176 : AIR 1986 SC 2118] ; State of U.P. v. Mohd.
Page 29
2026:JHHC:7564-DBSharif [(1982) 2 SCC 376 : 1982 SCC (L&S) 253 : AIR 1982
SC 937] .)
5. In High Court of Punjab & Haryana v. Amrik
Singh [1995 Supp (1) SCC 321 : 1995 SCC (L&S) 471 :
(1995) 29 ATC 311] it was indicated that the delinquent
officer must be supplied copies of documents relied upon
in support of the charges. It was further indicated that if
the documents are voluminous and copies cannot be
supplied, then such officer must be given an opportunity
to inspect the same, or else, the principle of natural justice
would be violated.”
39. It is further evident that the copy of the enquiry report
has also not been supplied to the delinquent.
40. We are conscious that after the law laid down by the
Hon’ble Apex Court in the case of Managing Director ECIL,
Hyderabad and Ors. Vrs. B. Karunakar and Ors., reported in
(1993) 4 SCC 727 that non-supply of the copy of the enquiry
report will not ipso facto vitiate the departmental proceeding
as also the order of punishment. Rather, the delinquent
employee will have to show the prejudice caused.
41. The factual aspect of the Managing Director ECIL,
Hydrabad Vs. B. Karunakar (supra) which was the
consideration made by the Constitution Bench of Hon’ble Apex
Court after having been referred for consideration of the
judgment rendered in the case of Union of India and Ors. Vrs.
Mohd. Ramzan Khan, reported in (1991) 1 SCC 588 has laid
down the proposition, in which circumstances, due to non-
supply of enquiry report and non-issuance of second show
cause notice the departmental proceeding will be vitiated. The
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relevant consideration has been made at paragraph 31 of the
said judgment, which reads as under:
“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 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 decidedPage 31
2026:JHHC:7564-DBby 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.”
42. Herein also, in the backdrop of the fact that the principle
of natural justice has not been followed properly, the M.W.-1
the sole witness who has been examined on behalf of the
Management leaving aside the other three witness, has also
not been allowed to be cross-examined by the delinquent, as
such, in this pretext, non-supply of enquiry report has
certainly cause serious prejudice.
43. We, after going through the order of termination and the
reference thereof made in the judgment passed by the learned
Tribunal, has found that the learned Tribunal has elaborately
dealt with the bearing of the evidence of M.W.-1 and since he
has not been allowed to be cross-examined, that has been
taken to be a serious lapse in the domestic enquiry.
44. The matter would have been different if no reliance would
have been placed by the Enquiry Officer on the evidence of
M.W.-1 but that was not possible, since, the entire memo of
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charge was found to be substantiated on the basis of
statement so recorded of M.W.-1.
45. Since we have already dealt with herein that as per the
mandate as referred hereinabove, the adequate and sufficient
opportunity is to be provided and not allowing the delinquent
to cross-examine M.W.-1, the sole witness, in support of the
Management, a serious prejudice has been caused to the
delinquent and, therefore, this Court is not hesitant in holding
that the principle of natural justice has seriously been flouted.
46. The learned Tribunal has taken into consideration the
aforesaid aspect of the matter and has held that serious
prejudice has been caused due to non-allowing the delinquent
to cross-examine M.W.-1 Shri S.Velu, as would be evident from
paragraph 24 of the judgment passed by the learned Tribunal.
This Court, therefore, is of the view that if the Tribunal has
taken into consideration that serious prejudice has been
caused due to non-examination of M.W.-1 which has been
made one of the basis to interfere with the order of
termination, the same cannot be said to suffer from an error.
47. The domestic enquiry since has been found to be unjust
and improper which is the basis of order of termination and
once the domestic enquiry itself has been held to be unjust
and improper then any consequence based upon the said
enquiry report will also be unjustified. Keeping the aforesaid
fact into consideration, the learned Tribunal since has
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interfered with the order of termination which has been upheld
by the learned Single Judge on deliberating upon the issues,
the same requires no interference.
48. The question of remand is another argument on the
pretext of the fact that even accepting that there is violation of
principle of natural justice then it should have been remitted
from the stage of enquiry.
49. So far as this ground is concerned, we are conscious that
if on technicalities any final outcome by a decision taken by
the competent authority is being quashed and set aside, then
generally it is to be remanded before the authority from the
stage to meet out the aforesaid technicality on the principle
that on technicality no one can be allowed to take advantage,
therefore, we are not adverse to the proposition laid down by
Hon’ble Apex Court upon which reliance has been placed i.e.,
the judgment rendered in the case of State of Uttar Pradesh
& Ors. V. Rajit Singh, (supra). But the order of remand is to
be passed depending upon the facts and circumstances of the
case.
50. This Court, therefore, is proceeding to examine the
applicability of the judgment passed by the Hon’ble Apex Court
having been relied in support of his argument by the appellant.
51. The factual aspect of the said case i.e. State of Uttar
Pradesh & Ors. V. Rajit Singh, (supra) needs to be referred
herein which has been discussed at paragraph-2 wherein the
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employee was serving as a Junior Engineer. An enquiry was
conducted and it was found that he had committed financial
irregularities causing loss to the Government. The disciplinary
proceedings were initiated against the respondent and others.
The enquiry officer held the charges alleged against the
respondent employee as proved. The disciplinary authority
concurred with the findings recorded by the enquiry officer
and passed an order of recovery of government loss of Rs
22,48,964.42 as per the rules from the salary. The matter went
to the Tribunal wherein the order of recovery has been
quashed and set aside which was affirmed by the High Court
and thereby the matter travelled to the Hon’ble Apex Court.
52. The respondent-State of Uttar Pradesh has taken the
ground therein that if there is violation of principles of natural
justice based upon the aforesaid ground if the Tribunal has
quashed and set aside the order then the enquiry ought to
have been remanded to initiate from the stage of the enquiry.
53. The Hon’ble Apex Court while discussing the factual
aspect as under pargraph-10 has made an observation that
the order of punishment could not have been set aside by the
Tribunal and the High Court reason being that the doctrine of
equality ought not to have been applied when the enquiry
officer and the disciplinary authority held the charges proved
against the delinquent officer. The Tribunal and the High
Court have interfered with the order of punishment by taking
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into consideration the fact that other officer involved in the
incident were exonerated, the Hon’ble Apex Court in that
pretext has observed in the said paragraph that merely
because some other officers involved in the incident are
exonerated and/or no action is taken against other officers
cannot be a ground to set aside the order of punishment when
the charges against the individual concerned – delinquent
officer are held to be proved in a departmental enquiry. There
cannot be any claim of negative equality in such cases. The
Hon’ble Apex Court in that pretext, has quashed and set aside
the order passed by the Tribunal and the High Court as also
the punishment imposed by the disciplinary authority,
however, as the enquiry is found to be vitiated and is found to
be in violation of the principles of natural justice in as much
as it is alleged that the relevant documents mentioned in the
charge-sheet were not supplied to the delinquent officer, the
Hon’ble Apex Court remanded the matter to the disciplinary
authority to conduct a fresh enquiry from the stage it stood
vitiated i.e. after the issuance of the charge-sheet and to
proceed further with the enquiry after furnishing all the
necessary documents mentioned in the charge-sheet and after
following due principles of natural justice.
54. From the aforesaid paragraph it is evident that the said
judgment cannot be made applicable herein in the fact and
circumstances of the present case because herein there is
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apparent that opportunity was denied to the
respondent/delinquent and sole Management witness (MW.1)
has not been cross examined by the delinquent and further
from date of the serving of charge about 16 years has already
been lapsed, therefore if matter is remanded back it will not be
subservient in the ends of justice.
55. The fact of the present case is that the memo of charge
was issued on 12.11.2009 which culminated into final order
of termination vide order dated 08.06.2010 and thus, after
lapse of almost 16 years, the question of remand is being
raised that too by the appellant who has committed the error
in conducting the domestic enquiry.
56. The law is well settled that a wrong doer cannot be
allowed to take advantage of its own wrong but even accepting
that on technicalities no advantage is to be given to the
delinquent but whether after lapse of 16 years will it be proper
for this Court to remit the matter before the Management for
de novo enquiry, that is the question.
57. This Court is of the view that at this juncture the
judgment rendered by Hon’ble Apex Court in the case of
Punjab National Bank & Others Vs. Kunj Behari Misra
reported in (1998) 7 SCC 84 wherein while dealing with the
issue of remand as under paragraph 21 in a backdrop of the
case that enquiry was not conducted as per the statutory rule
and in such circumstances, the Hon’ble Apex Court has been
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pleased to hold that after lapse of substantial period it will not
be proper to remit the matter for fresh enquiry or for taking
fresh decision, for ready reference, paragraph 21 of the
aforesaid judgment is being referred herein :-
“21. Both the respondents superannuated on 31-12-
1983. During the pendency of these appeals, Misra died
on 6-1-1995 and his legal representatives were brought
on record. More than 14 years have elapsed since the
delinquent officers had superannuated. It will,
therefore, not be in the interest of justice that at this
stage the cases should be remanded to the disciplinary
authority for the start of another innings. We, therefore,
do not issue any such directions and while dismissing
these appeals, we affirm the decisions of the High Court
which had set aside the orders imposing penalty and
had directed the appellants to release the retirement
benefits to the respondents. There will, however, be no
order as to costs.”
58. Adverting to the facts of the present case also that after
lapse of 16 years it will not be proper for this Court to remit
the matter for passing fresh order after initiating de novo
enquiry to too in a case where consciously the irregularity has
been committed in the domestic enquiry by not allowing the
sole witness M.W.-1 for his cross-examination in the domestic
enquiry, rather, it has been found from the record that his
statement was also recorded secretly. That shows the conduct
of the Management in holding the enquiry that is nothing but
with the biased and pre-decided mind to terminate the services
of the delinquent.
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59. This Court, therefore, is of the view that it is not a case
for remand for de novo enquiry.
60. The next issue as was raised of the issue of 50% back
wages.
61. The back wages are to be given in the background of the
fact that if the delinquent employee has forcibly been deprived
from discharging his or her duty since there is no normal rule
of ‘no work no pay’ rather, it depends upon the case on fact to
fact basis. The reference of paragraph 25 of the judgment
rendered in the case of Union of India and Others Vs. K.V.
Jankiraman & Ors., (1991) 4 SCC 109, wherein it has been
held that although no work no pay is the normal rule, but it
has got an exception and it will not be applicable in a case
where the employee was willing to work but had not been
allowed to discharge the duty and if such a condition would be
there, the principle of no work no pay will not be applicable.
Suppose, in a case where the delinquent employee was ready
to discharge the duty then in such circumstances the principle
of ‘no work no pay’ will not be applicable but if the employee
has willingly not discharged the duty, then in such
circumstances, the principle of ‘no work no pay’ will be
applicable, for ready reference, paragraph 25 of the aforesaid
judgment is being referred herein :-
“25. We are not much impressed by the contentions
advanced on behalf of the authorities. The normal rule
of “no work no pay” is not applicable to cases such asPage 39
2026:JHHC:7564-DBthe present one where the employee although he is
willing to work is kept away from work by the authorities
for no fault of his. This is not a case where the employee
remains away from work for his own reasons, although
the work is offered to him. It is for this reason that F.R.
17(1) will also be inapplicable to such cases.”
62. Similarly, in the case of Commissioner, Karnataka
Housing Board Vs. C. Muddaiah reported in (2007) 7 SCC
689 it has been held at paragraph 34 thereof which reads
hereunder as:-
“34. We are conscious and mindful that even in
absence of statutory provision, normal rule is ‘no work
no pay’. In appropriate cases, however, a Court of law
may, nay must, take into account all the facts in their
entirety and pass an appropriate order in consonance
with law. The court, in a given case, may hold that the
person was willing to work but was illegally and
unlawfully not allowed to do so. The court may in the
circumstances, direct the authority to grant him all
benefits considering ‘as if he had worked’. It, therefore,
cannot be contended as an absolute proposition of law
that no direction of payment of consequential benefits
can be granted by a Court of Law and if such directions
are issued by a Court, the Authority can ignore them
even if they had been finally confirmed by the Apex
Court of the country (as has been done in the present
case). The bald contention of the appellant-Board,
therefore, has no substance and must be rejected.”
63. Subsequent thereto, the Hon’ble Apex Court in the case
of Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya (D.ED) and Others [(2013) 10 SCC 324] has
been pleased to hold at paragraph 38 laying down the
guidelines on the issue of back wages.
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“38. The propositions which can be culled out from the
aforementioned judgments are:
38.1. In cases of wrongful termination of service,
reinstatement with continuity of service and back wages
is the normal rule.
38.2. The aforesaid rule is subject to the rider that while
deciding the issue of back wages, the adjudicating
authority or the court may take into consideration the
length of service of the employee/workman, the nature
of misconduct, if any, found proved against the
employee/workman, the financial condition of the
employer and similar other factors.
38.3. Ordinarily, an employee or workman whose
services are terminated and who is desirous of getting
back wages is required to either plead or at least make
a statement before the adjudicating authority or the
court of first instance that he/she was not gainfully
employed or was employed on lesser wages. If the
employer wants to avoid payment of full back wages,
then it has to plead and also lead cogent evidence to
prove that the employee/workman was gainfully
employed and was getting wages equal to the wages
he/she was drawing prior to the termination of service.
This is so because it is settled law that the burden of
proof of the existence of a particular fact lies on the
person who makes a positive averment about its
existence. It is always easier to prove a positive fact than
to prove a negative fact. Therefore, once the employee
shows that he was not employed, the onus lies on the
employer to specifically plead and prove that the
employee was gainfully employed and was getting the
same or substantially similar emoluments.
38.4. The cases in which the Labour Court/Industrial
Tribunal exercises power under Section 11-A of the
Industrial Disputes Act, 1947 and finds that even
though the enquiry held against the
employee/workman is consistent with the rules of
natural justice and/or certified standing orders, if any,
but holds that the punishment was disproportionate to
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the misconduct found proved, then it will have the
discretion not to award full back wages. However, if the
Labour Court/Industrial Tribunal finds that the
employee or workman is not at all guilty of any
misconduct or that the employer had foisted a false
charge, then there will be ample justification for award
of full back wages.
38.5. The cases in which the competent court or
tribunal finds that the employer has acted in gross
violation of the statutory provisions and/or the
principles of natural justice or is guilty of victimising the
employee or workman, then the court or tribunal
concerned will be fully justified in directing payment of
full back wages. In such cases, the superior courts
should not exercise power under Article 226 or 136 of
the Constitution and interfere with the award passed by
the Labour Court, etc. merely because there is a
possibility of forming a different opinion on the
entitlement of the employee/workman to get full back
wages or the employer’s obligation to pay the same. The
courts must always keep in view that in the cases of
wrongful/illegal termination of service, the wrongdoer is
the employer and the sufferer is the employee/workman
and there is no justification to give a premium to the
employer of his wrongdoings by relieving him of the
burden to pay to the employee/workman his dues in the
form of full back wages.
38.6. In a number of cases, the superior courts have
interfered with the award of the primary adjudicatory
authority on the premise that finalisation of litigation
has taken long time ignoring that in majority of cases
the parties are not responsible for such delays. Lack of
infrastructure and manpower is the principal cause for
delay in the disposal of cases. For this the litigants
cannot be blamed or penalised. It would amount to
grave injustice to an employee or workman if he is
denied back wages simply because there is long lapse of
time between the termination of his service and finality
given to the order of reinstatement. The courts should
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bear in mind that in most of these cases, the employer
is in an advantageous position vis-Ã -vis the employee or
workman. He can avail the services of best legal brain
for prolonging the agony of the sufferer i.e. the employee
or workman, who can ill-afford the luxury of spending
money on a lawyer with certain amount of fame.
Therefore, in such cases it would be prudent to adopt
the course suggested in Hindustan Tin Works (P) Ltd. v.
Employees [Hindustan Tin Works (P) Ltd. v. Employees,
(1979) 2 SCC 80 : 1979 SCC (L&S) 53] .
38.7. The observation made in J.K. Synthetics Ltd. v.
K.P. Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC (L&S)
651] that on reinstatement the employee/workman
cannot claim continuity of service as of right is contrary
to the ratio of the judgments of three-Judge Benches
[Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2
SCC 80 : 1979 SCC (L&S) 53] , [Surendra Kumar Verma
v. Central Govt. Industrial Tribunal-cum-Labour Court,
(1980) 4 SCC 443 : 1981 SCC (L&S) 16] referred to
hereinabove and cannot be treated as good law. This
part of the judgment is also against the very concept of
reinstatement of an employee/workman.”
64. From the aforesaid it is evident that one of the conditions
was the certificate of no gainful employment. This ground has
been taken although the same was not agitated before the
original forum and for the first time it has been taken before
the first appellate stage which is not permissible. The appellate
court is to assess the legality and propriety of the order passed
by the original forum based upon the record placed before it.
If any foreign documents is placed at the first appellate stage,
that cannot be a ground for consideration to give a finding of
illegality of the judgment passed by the original forum,
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otherwise, it will lead to allowing the party to improve the case
at the first appellate stage.
65. This Court, being the Court of appeal, is of the view that
if the fact has been raised then it is the bounden duty of this
Court to consider the aforesaid fact and, therefore, it is being
considered.
66. It needs to refer herein that the Hon’ble Apex Court in the
case of Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya (D.ED) and Others (Supra) has
observed in para 38.4 that ordinarily, an employee or
workman whose services are terminated and who is desirous
of getting back wages is required to either plead or at least
make a statement before the adjudicating authority or the
court of first instance that he/she was not gainfully employed
or was employed on lesser wages. If the employer wants to
avoid payment of full back wages, then it has to plead and also
lead cogent evidence to prove that the employee/workman was
gainfully employed and was getting wages equal to the wages
he/she was drawing prior to the termination of service.
67. Further in paragraph 38.5 it has been observed by the
Hon’ble Apex Court that the cases in which the competent
court or tribunal finds that the employer has acted in gross
violation of the statutory provisions and/or the principles of
natural justice or is guilty of victimising the employee or
workman, then the court or tribunal concerned will be fully
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justified in directing payment of full back wages. It has
categorically observed that in such cases, the superior courts
should not exercise power under Article 226 or 136 of the
Constitution and interfere with the award passed by the
Labour Court merely because there is a possibility of forming
a different opinion on the entitlement of the
employee/workman to get full back wages or the employer’s
obligation to pay the same.
68. It has further been observed that the courts must always
keep in view that in the cases of wrongful/illegal termination
of service, the wrongdoer is the employer and the sufferer is
the employee/workman and there is no justification to give a
premium to the employer of his wrongdoings by relieving him
of the burden to pay to the employee/workman his dues in the
form of full back wages.
69. In the instant case the fact about shifting of onus has
also been taken but there is no averment or ground at any time
before the Tribunal or before the learned Single Judge that the
delinquent was gainfully employed, rather, it has been argued
that as of now the delinquent employee is working.
70. This Court is of the view that there cannot be any denial
in view of the fact that back wages is being paid to meet out
the situation created due to termination/dismissal or removal
from service causing trauma and destabilizing the entire
family and on that count, the back wages is being paid as the
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consideration being given by the Hon’ble Apex Court in the
case of Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya (D.ED) and Others (Supra).
71. In the entirety of the facts and circumstances as
discussed hereinabove as also taking into consideration the
fact that the learned Tribunal has considered the entire aspect
of the matter, both in the facts and the law, and the law having
been upheld by the learned Single Judge, therefore, this Court
is of the view that no interference is to be given to the order
passed by the learned Single Judge.
72. Accordingly, the appeal fails and is dismissed.
73. Pending interlocutory application, if any, also stands
disposed of.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.)
Date : 18.03.2026
Birendra./ A.F.R.
Uploaded on 02.04.2026
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