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W.B. Correya Vs. the Deputy Managing Director, (Tech.) Indian Airlines, Air Lines House and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1980)2MLJ134
AppellantW.B. Correya
RespondentThe Deputy Managing Director, (Tech.) Indian Airlines, Air Lines House and ors.
Cases ReferredA. N. Shukla v. State of Madhya Pradesh
Excerpt:
.....counsel for the appellants holding that this requirement need not be satisfied even in a domestic enquiry. the order of suspension made against the appellant was clearly one made pending an enquiry. that clearly was the position between the government of the united provinces and the appellant. a careful reading of this decision will clearly go to show that the supreme court examined the jurisdiction of the writ court and clearly stated that ordinarily in a writ of certiorari, the offending order must be quashed and precisely that was what was done by my learned brother ramanujam, j. nevertheless, when the petitioner is not restored to the status quo ante is it not open to him to complain to this court that he is deprived of what is legitimately due to him. the court cannot refuse to..........assuming that the petitioner is entitled to the relief of reinstatement, this court, exercising writ jurisdiction, cannot quantify the monetary benefits due to the petitioner under this jurisdiction. it has been so laid down by the supreme court in the managing director, uttar pradesh ware-housing corporation and ors. v. vijay narayan vajpayee c.a. no. 274 of 1970. when no declaratory relief is asked for that the petitioner is entitled to reinstatement and consequently the payment of back wages, the grant of such reliefs would amount to wrong exercise of jurisdiction in view of the decision reported in m. s. r, t. corporation v. babajan : (1977)illj425sc .8. from the above narration of facts, it is clear that though the petitioner was originally, suspended pending enquiry, when an.....
Judgment:
ORDER

S. Mohan, J.

1. The short facts leading to the writ petition are as follows. The petitioner was employed as a Flight Steward in the Madras Region of the Indian Airlines. On 20th July, 1973 the following three charges were, framed against him in respect of an alleged misconduct in the Operations Offices and Departure Leunge on the 19th July, 1973

(i) Even though not on duty, he was found in the above offices appearing to be under the influence of liquor;

(ii) he behaved in a rude, indecent and abusive manner towards Capt. N. M. Pereira, Officiating Operations Manager by talking to him in an aggressive and threatening manner; and

(iii) he created a scene in the Departure Leunge, where passengers were seated, by shouting and using abusive and threatening language towards Capt. Pereira.

Concerning these three charges, a charge memo was served on the petitioner to which he filed his explanation on 30th July, 1973 and a further detailed explanation was furnished on the 28th of August, 1973. The matter was enquired into and findings were arrived at by the Inquiry Holder holding that all the three charges have been proved. On the basis of the said findings, a show cause notice was issued to the petitioner on 14th of December, 1973 directing him to show cause as to way he should not be removed from service. To this, the petitioner filed his explanation on the 5th of January, 1974. The respondents not being satisfied with the explanation, by an order dated 7th of February, 1974, directed removal of the petitioner from service, Against the said order of removal, the petitioner filed an appeal to the Assistant Managing Director, (Technical). Indian Airlines, New Delhi. That appeal was dismissed on 22nd April, 1974. Thereupon, the matter was taken up to this Court in W.P. Mo. 4153 of 1974 for a writ of certiorari to quash the order of removal as confirmed by the appellate authority. By an order dated 22nd day of July, 1976, this Court took the view that in so far as in the regular enquiry no witnesses were examined and only their statements were given to the petitioner and he was asked straightaway to cross-examine them, there was a serious flaw in the enquiry and there-fore it was set aside and ultimately the learned Judge Ramanujam, J., passed the following Order:

Since the petitioner has succeeded in setting aside the order of removal on the first ground, it is not necessary to deal with the other contentions. The order of removal is set aside and the writ petition is allowed. It is, however, open to the respondents to conduct a de novo enquirp in accordance with law on the same charges.

This decision is reported in W. B. Correya v. N. D. Indian Airlines (1977) 2 L.L.J. 163 : (1977) 1 MLJ 364 : (1977) Lab IC1449. Aggrieved by this decision, the matter was taken up in Writ Appeal No. 505 of 1976. The matter same up before Ismail, J, as he he then was, and Nainar Sundaram, J., The learned Judges took the view that:

If the statement is not put to the witnesses and he had not been given an opportunity to affirm the same as indicated above, there is in fact no evidence of that witness in the course of the chief-examination at all and it is very doubtful whether such a statement, notwithstanding copies thereof, had already been furnished to the worker, can be used as substantive evidence against the worker concerned. It is this aspect of the matter which weighed with Ramanujam, J., who held that the failure to put these statements to the witnesses, not having affirmed their statements nor having stated that they stood by their statements--violated the principles of natural justice. No decision of any Court was brought to our notice by the learned Counsel for the appellants holding that this requirement need not be satisfied even in a domestic enquiry. On the face of it, the procedure followed by the Enquiry Officer is certainly defective, detrimental and prejudicial to the case of the respondent herein.

Accordingly, the writ appeal was dismissed. After the disposal of the writ appeal, the petitioner wrote a letter on the 19th of July, 1978 to the respondents requesting them to implement the orders of this Court and to reinstate the petitioner in service. Since that letter did not meet with any response, by a further letter dated 5th of August, 1978 he reiterated his request for reinstatement with full back salary and enclosed a copy of the judgment of this Court. To this, ha received a reply dated 30th of August, 1978 stating that 'the High Court by an order dated 22nd July, 1976 allowed the above writ petition, set aside the order of removal but left open to the Management to conduct a de novo enquiry. It has been decided to conduct a denovo enquiry into the charges levelled against you, vide our letter No. MDs/Per/Wel/8860 dated 24th July, 1973.

2. Consequent on the removal having been set aside, you will continue to be under suspension pending enquiry into the charges. You will be paid subsistence allowance, as per the rules applicable to you, after adjustment of whatever amounts have been paid to you during the pendency of the writ appeal. For this purpose, you may contact our Accounts department.

3. The name of the Enquiry Officer will be intimated to you in due course. The Enquiry Officer will communicate to you the date, time and venue of the enquiry.'

4. After the receipt of the above letter, the petitioner sent a lawyer's notice contending, inter alia, that keeping the petitioner, under suspension without reinstatement and payment of back wages is without authority and therefore illegal. To this a reply was sent stating that the petitioner will be entitled only to subsistence allowance. It is under these circumstances, the present writ petition has been preferred for mandamus to direct the respondents to reinstate the petitioner in service and pay him the back salary with concomitant emoluments and allowances payable under the rules before proceeding with the de nova enquiry into the charges levelled against the petitioner.

5. Mr. K. Alagiriswami, learned Counsel for the petitioner would urge that no doubt originally the petitioner was suspended. But, that order of suspension got merged in the ultimate order of removal from service passed by the second respondent on 7th February, 1974. Once that order of removal was set aside by this Court in W P. No. 4153 of 1974, which in turn was confirmed in Writ Appeal No. 505 of 1976, the effect of allowing that writ petition would be to restore the petitioner to status que ante, In other words, the petitioner ought to have been reinstated. Merely because this Court enabled the respondents to conduct a de novo enquiry, that does not mean that it will be open to the respondents to pass an order that he will continue to be under suspension pending enquiry into the charges. There is no question of continuing to be under suspension since there was no suspension order to get revived that having got merged or culminated with the order of removal. Thus, the petitioner is legally entitled to the reinstatement and all the monetary benefits by way of salary and other allowances. That cannot be denied to the petitioner. In support of this, reliance is placed on the decision in Om Prakash Gupta v. State of Uttar Pradesh : (1956)ILLJ1SC , wherein it was held:

Where an order of suspension is made against a Government servant, pending an inquiry and as the result of inquiry in order of dismissal by way of penalty has been passed, the order of suspension lapses with that order and the subsequent declaration by a civil Court that the order of dismissal was illegal cannot revive the order of suspension which did not exist.

6. As against this, Mr. C. Ramakrishna, learned Counsel for the respondents would urge that restoration of status quo ante would mean restoring the position which the petitioner happened to occupy before the order of dismissal which means the petitioner's suspension does not get obliterated and therefore to that position the respondents are bound to restore the petitioner which has been done. Therefore, their is every compliance with the order of the Court. Suspension also would mean this the employee is in service. Otherwise, there is no nexus nor are the respondents obligetd to pay the subsistence allowance.

7. Even assuming that the petitioner is entitled to the relief of reinstatement, this Court, exercising writ jurisdiction, cannot quantify the monetary benefits due to the petitioner under this jurisdiction. It has been so laid down by the Supreme Court in The Managing Director, Uttar Pradesh Ware-housing Corporation and Ors. v. Vijay Narayan Vajpayee C.A. No. 274 of 1970. When no declaratory relief is asked for that the petitioner is entitled to reinstatement and consequently the payment of back wages, the grant of such reliefs would amount to wrong exercise of jurisdiction in view of the decision reported in M. S. R, T. Corporation v. Babajan : (1977)ILLJ425SC .

8. From the above narration of facts, it is clear that though the petitioner was originally, suspended pending enquiry, when an order of removal was passed by the second respondent on 7th February, 1974, that suspension culminated or got merged in the ultimate order of removal. The legal effect of that order of removal being set aside by my learned brother Ramanujam, J., in W.P. No. 4153 of 1974 would be as if the petitioner is deemed to be in service. The suspension, having become extinct by reason of its merger with the ultimate order of removal, cannot get revived. This is a settled position. In fact, in Om Prakash Gupta v. State of Uttar Pradesh : (1956)ILLJ1SC , it has been categorically laid down at page 603 rejecting a similar contention raised by the respondent. The order of suspension made against the appellant was clearly one made pending an enquiry. It certainly was not a penalty imposed after an enquiry. As a result of the enquiry an order of dismissal by way of penalty had been passed against the appellant.

9. With that order, the order of suspension lapsed. The order of dismissal replaced the order of suspension which then ceased to exist. That clearly was the position between the Government of the United Provinces and the appellant. The subsequent declaration by a civil Gourd that the order of dismissal was illegal could not revive an order of suspension which did not exist. Therefore, when the order dated 30th August, 1978, states that the petitioner, consequent on his removal being set aside, will continue to be under suspension pending enquiry into the charges, it cannot be supported in law. Again in A. N. Shukla v. State of Madhya Pradesh : [1980]1SCR196 , the Supreme Court held that when an earlier order is quashed on technical grounds, on merits a second enquiry could be held. In that connection it was observed at pages 326 and 327 that:

Without reinstating the appellant, it would have been difficult perhaps unlawful, to start a fresh enquiry against the appellant.

No doubt, my learned brother Ramanujam, J., afforded liberty to the respondents to conduct an enquiry de novo. But that has no bearing as far as the reinstatement is concerned. I may even go to the extent of saying that only when the petitioner is reinstated in service, with all attendant benefits, a further enquiry will be possible Without doing that, the respondents cannot be heard to say that the suspension which had lapsed or which has no legs to stand on independently, that being one pending (the prior) enquiry, would continue to be operative. In M. S. R. T. Corporation v, Babajan : (1977)ILLJ425SC , it was held:

It may be that the effect of the High Court's order, setting aside the dismissal, was that the stigma of dismissal was removed from the record of the first respondent. Nevertheless, as no order granting a declaratory relief he had asked for was given to the first respondent, he could not have been deemed to be a servant even of the State Government after the department in which he was working was wound up. The most he could say was that he was not dismissed. The winding up of the department would, on the facts stated above, operate as the discharge of the respondent who could, if so advised, seek whatever other means of redress he may still have under the law.

It must be noted that these observations came to be made in view of the peculiar position in that case where the department in which the workman were serving earlier had come to be wound up. The situation here is entirely different. Therefore, this decision does not help the respondents in any manner. Accordingly I conclude that the petitioner is entitled to reinstatement.

10. Now comes the question as to what is the relief that is to be afforded to the petitioner. Mr. C. Ramakrishna, learned Counsel for the respondents relied upon the judgment of the Supreme Court in The Managing Director, Uttar Pradesh, Warehousing Corpn. and others v. Vijay Narayan Vajpayee C.A. No. 274 of 1970, wherein it was observed by their Lordships as follows:

It must be remembered that in the exercise of its certiorari jurisdiction, under Article 226 of the Constitution, the High Court acts only in a supervisory capacity and not as an appellate tribunal. It does not review the evidence upon which the inferior tribunal proposed to base its conclusion; it simply demolishes the order which it considers to be without jurisdiction or manifestly erroneous, but does not, as a rule, substitute its own view for those of the inferior tribunal. In other words, the offending order or the impugned illegal proceeding is quashed and put out of the way as one which should not be used to the detriment of the writ-petitioner. Thus, in matters of employment, while exercising its supervisory jurisdiction under Article 226 of the Constitution over the orders and quasi-judicial proceeding of an administrative authority--not being a proceeding under the industrial labour law before an industrial labour tribunal--culminating in dismissal of the employee, the High Court should ordinarily, in the event of the dismissal being found illegal, simply quash the same and should not further give a positive direction for payment to the employee full back wages (although as a consequence of the annulment of the dismissal petition as it obtained immediately before the dismissal is restored), such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by an Industrial Tribunal or Labour Court. The instant case is not one under Industrial Labour Law. The respondent-employee never raised any industrial dispute, nor invoked the jurisdiction of the Labour Court of the Industrial Tribunal, He directly moved the High Court for the exercise of its special jurisdiction under Article 226 of the Constitution for challenging the order of dismissal primarily on the ground that it was violative of the principles of natural justice which required that his public employment should not be terminated without giving him a due opportunity to defend himself and to rebut the charges against him. Furthermore, whether a workmen or employee of a statutory authority should be reinstated in public employment with or without full back wages, is a question of fact depending on evidence to be produced before the tribunal. If after the termination of his employment the workman/ employee was gainfully employed elsewhere, that is one of the factors to be considered in determining whether or not the reinstatement should be with full back wages and with continuity of employment. For these two-fold reasons, we are of the opinion that the High Court was in error in directing payment to the employee full back wages.

A careful reading of this decision will clearly go to show that the Supreme Court examined the jurisdiction of the Writ Court and clearly stated that ordinarily in a writ of certiorari, the offending order must be quashed and precisely that was what was done by my learned brother Ramanujam, J., which judgment was confirmed by Ismail, J., as he then was, and Nainar Sundaram, J. Nevertheless, when the petitioner is not restored to the status quo ante is it not open to him to complain to this Court that he is deprived of what is legitimately due to him. In my considered view, the answer should be in favour of the petitioner. After all it should be remembered that the Courts must give redressal to a petitioner when a complaint is made that proper effect is not given to the orders passed by this Court which orders were secured after may a hard battle. The Court cannot refuse to extend help to a person to enable him to achieve the fruits of a well-earned order. If it were to remain otherwise, the scope of the writ jurisdiction would get diluted. Therefore, I am unable to accept the contention of the respondents that there has been every compliance of the order of this Court by restoring the petitioner to the position which he occupied prior to removal, namely, suspension. This is because, as I observed above the order of suspension has no independent existence after removal of the petitioner. Therefore, I am unable to see as to why the petitioner will not be entitled to both the reliefs asked for by way of mandamus in this writ petition. Accordingly, the writ petition is allowed, which means:

(1) the petitioner will be entitled to reinstatement forthwith;

(2) the petitioner will be paid all the salary from 19th July, 1975, the date of the original order of suspension upto 2nd February, 1979, when alone the petitioner was informed by Mr. J. D. Raje, Operations Department, Indian Airlines, Bombay, who was constituted as the Enquiry Officer to attend the enquiry on 17th February, 1979. This order will be implemented on or before 15th of March, 1980. The enquiry against the petitioner will be finished on or before 31st May, 1980 by the respondents. It is made clear that the petitioner will not seek undue adjournments but will co-operate with the respondents in regard to the completion of the enquiry within the date mentioned above. There will be no order as to costs.


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