JUDGMENT
C. Shivappa, J.
1. The appellant has challenged the order of the learned single Judge, dated September 29, 1997 passed in W.P. No. 10942 of 1991 inter alia contending that, (1) the learned Judge has rather misapplied the law relating to the disciplinary proceedings, (2) there were no clinching materials to prove the charges levelled against him, and (3) the observation that the writ petition is premature and, hence, no relief can be granted, is unsustainable in law and on facts.
2. The appellant was employed by respondent No. 1 and had been working as an Assistant Tester in the Municipal Corporation Electricity undertaking. On the allegation that he was connected with the theft of Palani and in Vahini Ice Factory, Palani, charges were framed against him on the ground that he committed an offence under Sections 39 and 44(c) of the Indian Electricity Act illegally and unjustly by colluding with the proprietor of the Gemini Ice Factory at Palani by tampering the electricity meters. By removing the original seals and substituting with the duplicate seals, he was responsible for electricity theft and caused loss of revenue to the Corporation Electricity Department.
3. The appellant denied all the charges, inter alia contending that the averments are based only on assumption, surmises and hearsay, and pleaded that he is innocent. An enquiry was conducted and in the report it was held that he was in possession of electrical tools and was found under suspicious circumstances and on those two circumstances, held that he caused loss of revenue and the two charges were proved.
4. The Madurai Municipal Corporation Commissioner by his order dated March 25, 1988 adverted to the circumstances that he was in possession of electrical tools to defraud the Tamil Nadu Electricity Board and held that he should be dismissed from service and further order to treat the period of interim suspension as earned leave. He was dismissed from service by an order dated October 6, 1987.
5. At the time of dismissal, he was working as a tester in the testing section of the Department of Electrical Undertaking of Madurai Municipal Corporation. The electricity department in the first respondent Corporation along with its employees was taken over by respondent No. 2 on April 30, 1995. Though the appellant was arrested by the Palani town police on February 4, 1982 for the alleged offence under Sections 78, 80 and 82 of the Indian Electricity Act, read with Section 379 of the Indian Penal Code and later was placed under suspension, the Palani police did not file any charge sheet against him, but laid the charge-sheet in C.C. No. 1560 of 1983 against one Abdul Jaleel and C.C. No. 1561 of 1983 against one Thiagarajan and one Velusamy. In both the cases, he was not the accused and he gave representation on that basis, that he is innocent. The fact remains that in C.C. No. 520 of 1991 on the file of the Judicial Magistrate No. 1 Madurai by a judgment dated November 17, 1993, the case ended in acquittal. Thus there are no criminal cases against the appellant with any conviction.
6. The learned counsel for the appellant contended that even in the enquiry report, there are no materials incriminating the appellant to show that he aided or is responsible in any manner to tamper the electric meters. In the absence of any such material, the suspension and the consequent dismissal are unsustainable both in law and on facts. Since this is a case of dismissal from service, in order to know his past conduct when he was in the services of respondent No. 1, we directed the learned counsel for the Electricity Board to get the Service Record of the appellant. The same is produced. The learned counsel appearing for respondent No. 2 submitted that except a censure in the year 1971, that too, for the unauthorised absence, there are no adverse remarks or any kind of punishment to his credit. It is settled in law that while determining the quantum of punishment, the power has to be exercised objectively with due application of mind to various relevant circumstances, such as, past conduct, the total length of service, the gravity of the offence and the materials available to point the guilt, etc. In addition to this, whether the misconduct alleged was the first one in his service or whether he had clean and unblemished service record has to be taken into consideration. The authority while imposing the punishment of dismissal, failed to advert to any of these considerations. Though he was not an accused in the earlier two cases and in one case, he was acquitted, and there are also no materials pointing to his guilt in the enquiry report, the suspension and the consequent dismissal are wholly untenable in law, It is not proper to direct the workman to approach the authority by way of a representation, when he was unjustly and illegally removed from the service. Therefore, the order of the learned single Judge, directing the appellant herein to give a representation on the administrative side to work out his remedy, is uncalled for and untenable. So also, the finding that the writ petition is premature.
7. The other aspect that remains for consideration is whether the appellant is entitled for the backwages from the date of dismissal. Whenever the Court comes to the conclusion that the dismissal is bad in law, payment of backwages need not be denied, unless there are exceptional circumstances such as, the management is in financial dolldrums, the gravity of the offence is of such a nature which requires punishment of some degree etc. In Surender Kumar Verma v. Central Government of India Industrial Tribunal (1981-I-LLJ-386), the Apex Court has held as follows:
“Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to backwages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis–vis the employer and workmen to direct reinstatement with full backwages. For instance, the industry might have closed down or might be in severe financial dolldrums, the workmen concerned might have secured better or other employment elsewhere and so on. In such situation, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full backwages where that would place an impossible burden on the employer. In such and other exceptional cases, the Court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full backwages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardships is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted”. Therefore, except in exceptional cases, denial of backwages is not proper and permissible. This is not one such case. When there is no material to connect the appellant with the alleged charges, there is no justification to deny the backwages. Therefore, we direct that the appellant is entitled for the full backwages from the date of dismissal, i.e., from June 8, 1988 till April 30, 1995, payable by respondent No. 1 since he was an employee of respondent No. 1 Corporation at that time. Subsequently, respondent No. 2 herein had taken over the management of the electricity department in the respondent No. 1 Corporation along with its employees, on April 30, 1995. Since the dismissal order was passed by respondent No. 1, we see no justification to fasten the burden of payment of backwages on respondent No. 2. The learned counsel appearing for the appellant fairly conceded that his client is prepared to forego the backwages for the period from April 30, 1995 till now. Thus, we relieve the respondent No. 2 from paying any backwages after its taking over the management of Respondent No. 1 to corporation, i.e., from April 30, 1995 till now. Respondent No. 1 to quantify the backwages for the period starting from the date of dismissal i.e., from June 8, 1988 till April 30, 1995 after adjusting whatever has already been paid as suspension allowance and the balance to be paid within a period of two months from the date of receipt of copy of this order.
8. Respondent No. 2 is hereby directed to reinstate the appellant forthwith as Tester, i.e., the post which he held at the time of dismissal and, thereafter, to work out his entitlement for seniority subject to eligibility, and to give all the benefits as if he continued in service and these directions have to be complied with within a period of two months from the date of receipt of copy of this order.
9. For reasons aforestated, we set aside the impugned order of the learned single Judge dated September 29, 1997 passed in W.P. No. 10942 of 1991 and allow this writ appeal and award a cost of Rs. 2000 payable by respondent No. 1 to the appellant within a period of eight weeks from today.