ORDER
Sathiadev. J.
1. On judgment pronounced on September 28, 1989, learned Counsel Mr. N.G.R. Prasad, points out that he had taken up a point that S.O. 21(vii) (g) had not been complied with before passing the order of removal from service, and therefore, the order dated May 5, 1978 is illegal. The said S.O. reads as follows:
“In awarding punishment, the punishing authority shall take into account the gravity of the misconduct, the previous record of the workman and of any other extenuating or aggravating circumstances that may exist”.
This point was not canvassed before the learned Judge though it is claimed that this was raised in the departmental appeal preferred against the said order. Even in the counter-affidavit filed in W.P. No. 5044 of 1980, this point had not been taken. Yet, during argument in W.A. this point having been taken, on his oral plea to review the judgment, the point as taken by him, is considered hereunder:
2. He contends that, if a S.O. is not complied with, the procedure followed in the disciplinary proceeding being illegal, the order of removal from service will have to be/set aside and the resultant effect is that, first respondent gets restored to service, and he is entitled to the payment of the entirety of the backwages straightway. Second respondent having set aside the order of removal, that order becomes operative. The disciplinary proceeding initiated gets vitiated, and it is now left to the Board either to proceed against him afresh or abide by the order of the second respondent and reinstate the first respondent in service. An order passed by an authority under the Tamil Nadu Shops and Establishments Act setting aside an order of dismissal or removal from service is much more than an order of reinstatement which could be passed by a Labour Court; and therefore, the first respondent will have to be not only restored to service, but entirety of the back wages which had accrued due till date, will have to be paid to him, on being restored to service. To show that Standing Orders are statutory in nature, he relies on Workmen in B & C Mills v. B.C. Mills (1970-I-LLJ-26) and that it had to be construed strictly. He has referred to Glaxo Lab (I) Ltd. v. Labour Court, Meerut and Ors. (1984-I-LLJ-16). After referring to Western India Match Company Ltd. v. Workmen (1973-II-LLJ-403), it was held as follows (1984-I-LLJ-16 at 25):
“….every thing which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say expost facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is none the less a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty. Accordingly, the contention of Mr. Shanti Bhushan that some other act of misconduct which would per se be an act of misconduct though not enumerated in S.O. 22 can be punished under S.O. 23 must be rejected”.
For the proposition that if dismissal is contrary to Standing Orders it would be illegal, he would first refer to Om Prakash Gupta v. State of Uttar Pradesh (1956-I-LLJ-1) which deals with dismissal of a Government servant. It was held therein that if a Civil Court declares that the order of dismissal was illegal, it could not revive the order of suspension, and therefore, he would be entitled to the entirety of the emoluments which would be payable to him during the period he was kept away from service. It was a case in which he filed a suit and claimed a sum by way of damages for the period involved. This decision cannot support the contention of first respondent that, on a technical point, when an order of dismissal is set aside, on restoration of service, and when disciplinary proceedings have not been quashed, he should be paid the entirety of the backwages straightway. Devendra Pratap Narain v. State of U.P. (1962-I-LLJ-266) again deals with a Government servant, who got reinstated into service under orders of a Civil Court, and it was held that in such circumstances, Rule 54 of Fundamental Rules would not apply; and he would be entitled to the entirety of the remuneration which had been deprived of during the relevant period. This is also not an authority for the proposition put forth by first respondent’s learned counsel that entirety of the backwages must be paid when disciplinary proceedings are kept pending.
3. The next decision of the learned Judge of this Court is V. Radhakrishnan v. Indian Bank (1986-II-LLJ-443) in which a dismissed Bank employee succeeded before the authority in an appeal under Section 41 of the Tamil Nadu Shops and Establishments Act, and it was set aside by the High Court by sending back the matter for fresh disposal; and at that stage, the employee died and his legal representatives sought for a review of the High Court’s decision.
This decision is relied upon with considerable emphasis, to contend that this Court cannot remit the matter for being further proceeded with in compliance with S.O. 21 (vii) (g) and that for its non-compliance, when the order gets vitiated, it has to simply uphold the order of the Appellate Authority, though it had set aside the order of removal from service on different grounds, and that the matter should be left at large. If this approach is to be made, it would result in the entire disciplinary proceeding being quashed, in spite of the conclusions arrived at by this Court about the most unsatisfactory manner in which the Appellate Authority has passed the order and in spite of the findings in the disciplinary proceedings on charges 2 and 3 are allowed to stand by remitting the matter to the second respondent for appropriate disposal. In the decision relied upon, charges 1, 3 and 4 against
the employee were held proved by the Management based on admissions made by him, and it conducted an enquiry only in respect of charge No. 2 and found him guilty of the said charge. The Appellate authority held that charge No. 2 has not been proved, and that the penalty of discharge cannot be sustained on charges 1, 3 and 4 which are minor in nature, and it is against such an order, when a writ petition was filed, this court held that as for these three charges, para 19.12 (e) of Bi-partite Settlement having not been complied with, it being that the holding of enquiry is imperative irrespective of admission; the matter was remitted to the Appellate authority to go into these charges. It is to review this order, a petition was filed by the legal representatives of the deceased employee and the learned Judge held that in the absence of enquiry in respect of three charges, “this Court should have upheld the order of the Appellate authority holding the discharge as invalid”. It is then concluded by holding that the matter need not have been remitted and the petition is ordered.
4. This decision is relied upon as an authority for the proposition that, if there is a procedural irregularity, the order gets vitiated, and there is no scope for revival of the disciplinary proceedings or allow a part of the disciplinary proceedings to continue. Such a concept had never been upheld, because any procedural error could always be corrected by revival of the proceeding from the stage at which the procedural error had crept in, and the guilty should not escape the consequences by taking undue advantage of procedural errors or omissions. If the proposition put forth by learned counsel Mr. Prasad is accepted, then by the connivance between the delinquent and inquiring authority, a procedural lapse could be allowed to occasion, and thereby corrupt and dishonest employees could absolve themselves, not by proving their innocence but by showing that they have been visited with procedural lapses in the conduct of disciplinary proceedings taken against them. This proposition had never been accepted nor could it ever be accepted now or in future. Learned Judge evidently being aware that employee had died, and in his absence, an enquiry cannot be held under the Bi-partite settlement and perhaps moved by sympathetic consideration, had come
to the said conclusion and certainly no valid reasons are given for taking such a view. It has to be held as a decision rendered under the facts and circumstances of that case; and it is not an authority for the proposition that whenever this court sets aside an order of Appellate Authority and disciplinary authority for procedural errors in disciplinary proceeding, it has no power to remit the matter for proper disposal either by the Appellate Authority or by the Disciplinary Authority. When S.O. is not complied with and thereby the initial order gets vitiated, there is no question of remitting the matter to the Appellate Authority, and the matter will have to go back to the Disciplinary Authority to be taken up from the stage at which such an omission had occasioned. By such a procedural lapse in the concluding stage, the findings arrived at by the disciplinary authority on the charges framed against the delinquent do not get quashed at all. There are serious charges of corruption against Appellant. It must be remembered that it was a case in which the learned Judge took note of the fact that the employee had admitted the charges, and it is because of the Bi-partite settlement impelling the holding of an enquiry into those charges, the matter was remitted by the learned Judge, and by that time he had died. It is by taking into account the peculiar circumstances that such an enquiry cannot be held in his absence and evidently the learned Judge by extending sympathy closed the matter, in the manner as down. Such an approach made under peculiar circumstances of a case in which a delinquent dispensing court proceedings is nothing unknown in disciplinary proceedings cases.
5. The next decision is of a Division Bench of this Court in W.A. No. 909 of 1983 (Judgment dated September 8, 1989), which dealt with an order of termination from service without holding an enquiry, but as per one of the terms of letter of appointment In that case the Management contended that as it had lost confidence in the employee, who is not a ‘workman’ under the Industrial Disputes Act, his services were terminated. The Labour Court held that the non-employment was justified because the Management had lost confidence in him. The writ petition filed by him was also dismissed. In allowing the writ appeal, it was held that, once it is found that the basis of termination was consequent to the allegation that he was responsible for the unauthorised removal and disposal of the products of the Management, it is punitive in nature, and as Standing Orders had not been adhered to in terminating his services, such a termination cannot be upheld. It is under such circumstances the order of reinstatement was passed, and the emoluments for 15 years, which is the period when he was kept away from service, was directed to be paid. This is again not an authority for the contention that the entire backwages for the period between the order of removal and the order of reinstatement pending enquiry should be paid over, when disciplinary proceedings are kept alive. This was not a case where the Division Bench directed continuance of disciplinary proceedings. The order of termination from service came to be quashed in a case, wherein no disciplinary proceeding was conducted at all.
6. W.P. No. 1954 of 1980 (Order dated December 9, 1983) is a decision rendered by a learned Judge of this Court in which there was a failure to take into account past conduct as per the Standing Order applicable to the Management, and it was held that on this ground, the Tribunal could refuse to give approval under Section 33(2) of Industrial Disputes Act, without going into the question as to whether the materials available establish a prima facie case for dismissal or not. Taking note that the Tribunal had already considered the merits and found that a prima facie case of theft of the soldering iron by the employee had not been made out, the impugned order passed by the Tribunal was upheld. Hence, it was a case wherein not only there was non-compliance with the Standing Order but the Tribunal had gone into the merits of the matter and found that the charge framed against the employee was not proved. In the instant case, the grave omission by the Appellate Authority was its failure to consider the mertis of the charges, and therefore, such an order cannot be upheld by pointing out an omission by the disciplinary authority in not taking into account the past record of service.
7. On the point as to what an employee would be entitled to get as wages during the period when he was not in service, a decision of the learned Judge of this Court in Dhandapani v. Salem Co-op. Wholesale Stores 1950 1 MLJ 108 is relied upon. When an employee filed a suit claiming wages for the period involved after succeeding in an appeal under Section 41 of the Shops and Establishments Act, it was held that the effect of setting aside the order of dismissal was that in law, he continued to be in service. Hence, the suit claim was decreed. This decision is not an authority for the claim that an order passed by the Appellate Authority under Section 41 is equatable to an order passed by Labour Court directing reinstatement of service. The said authority could have only power to set aside the order of termination from service. Yet, reliance is placed on the decision in Tata Iron and Steel Co. Ltd. v. G. Ramakrishna Ayyar and Anr. (1950-LLJ-1043) wherein on a contention raised that the Commissioner has no jurisdiction to direct reinstatement under the Act, it was held by Division Bench that he should not have said that the employee would be entitled to reinstatement, and when he reverses the decision of the employer, the order of termination being no longer in existence and “non-esse”, yet, the result of the order of the appellate authority is virtually the same. Probably, the result of the appellate order is even better than an order of reinstatement. It is as if the employee had never been properly dismissed from service. No decision of the Supreme Court upholding the interpretation of the Act is produced.
8. Anand Narain Shukla v. State of M.P. proceeds on the basis that without reinstating, if an order is passed by the High Court quashing the order of reversion, a fresh enquiry cannot be started against the delinquent. It was further held that he will be entitled to the full emoluments for the period during which he was kept under suspension.
9. A learned Judge of this Court in Correya v. Deputy Managing Director, Indian Airlines (1980 I MLJ 134) held that when an order of removal from service is set aside by the High Court with permission to hold de novo enquiry, the order of suspension in force pending enquiry cannot be revived, and the emoluments for the period involved will have to be paid, and that the delinquent would be entitled to an order of reinstatement forthwith.
As contemplated under Section 41 of the Act, termination had been effected, and it was held by a Division Bench of this court in State Bank of India, Coonoor v. Mylasamy that till a valid notice is issued for the period during which he had been kept away from service, he would be entitled to full wages.
10. All these decisions in no way support the two contentions put forth by learned Counsel Mr. N.G.R. Prasad. While exercising jurisdiction under Article 226 of the Constitution of India, this Court has the necessary power to remit a matter, either to the Appellate Authority constituted under the Act for appropriate disposal or to the Disciplinary Authority as the case may be. Learned Counsel for the Board had claimed that what the Appellate Authority cannot do under the Act, cannot be secured from this Court. The power of this court is not confined within the four corners of the Act, and is more wider in its ambit as conferred under the Constitution. In this review petition, when First Respondent has made out that S.O. 21(vii)(g) had not been followed before passing the order of removal from service, and because of this omission when it gets vitiated by such a procedural error, there is no scope to remit the matter to the Appellate Authority as already ordered; and therefore, in its place, it is hereby ordered that the matter is remitted to the Disciplinary Authority, to pursue the disciplinary proceedings from the stage of taking into account the past record of service. The order of the Appellate Authority is set aside on the grounds already stated, and therefore, its conclusions on the concerned charges will have no binding effect on the Disciplinary Authority. Though the Appellate Authority had set aside the order, since the manner of disposal having been found to be erroneous, this is not a case wherein such an order could be confirmed as claimed by learned Counsel Mr. N.G.R. Prasad, but is set aside with a direction to the Disciplinary Authority to pursue the disciplinary proceedings, from stage of its obligation to take into account S.O. 21 (vii)(g).
11. Once the order of removal from service is thus set aside, First Respondent is entitled to be reinstated into service, subject to pendency of disciplinary proceedings.
12. On the other contention that he is entitled to be paid the entirety of the backwages, this is certainly not a fit matter to order payment of the entirety of the backwages, when the findings on two charges have not been set aside by this Court There is only a procedural flaw in not taking into account the past record of service. It cannot take unduly a long time for the Board to comply with this requirement First Respondent’s record-sheet is already available. Therefore, it is granted three weeks’ time from the date of this order for passing appropriate orders, after complying with the said S.O. It would be extremely unwise to part with a huge amount, merely because it has taken longer time for the Courts to decide upon this matter. He had not pleaded this point before the Appellate Authority. What is now attempted by him is to get at the entirety of the backwages, which may be more than a lakh of rupees, and thereafter, if it is to result in the same order being passed, he could conveniently walk away, by taking this technical point at the belated stage. No Court would blind itself to realities and permit unjust enrichment by its orders. It is not as if on the date of joining duty pursuant to this order, he requires the entirety of the backwages, for his survival. When the findings on charges of corruption are retained awaiting proper disposal and when the omission to take into account his past record of service alone is the factor on which he gets reinstatement, this court would not pass a hazardous order by directing payment of the entire backwages to First Respondent on the date of his reinstatement, being fully aware that the S.O. itself states that the gravity of the misconduct will have to be taken into account
13. A strange contention is put forth that before charges of corruption or misconduct are framed, during the earlier part of service if there had been no complaints in that regard, then in such instance, a major punishment cannot be imposed. This is an unacceptable contention, because it is for specified corrupt acts charges are framed, and if the gravity of the charges is of a serious nature, absence of prior complaints in the
past is an irrelevant factor. It is not necessary that an employee must be committing derelictions of the same nature over a period of years, for being visited with a major punishment Absence of complaint does not necessarily mean good conduct. If proved charges by themselves are grave in nature, and by themselves if they merit imposition of punishment, whatever be the other kind of meritorious service rendered earlier would be irrelevant. It depends upon the facts and circumstances of each case, as to what extent prior conduct in service could be a factor for reducing the punishment, other than what could have been imposed under the given circumstances. It is entirely left to the Board to take appropriate decision as per the S.O.
14. On First Respondent reporting to duty based on this order, he would be entitled to remuneration payable for the post held by him. There is no order to pay backwages. On the Appellate Authority setting aside the order, he could not have got an order for reinstatement with backwages straightway from him. Dependent upon the nature of the order that would be passed in the disciplinary proceedings, he would have to work out his rights relating to back-wages, if any.
15. Hence, the review application made orally is allowed by modifying the judgment dated September 28, 1989, and by remitting the disciplinary proceedings to the appellant to comply with the requirements of S.O. 21 (vii)(g) within three weeks of the receipt of the steno copy of this order, which is handed over to the concerned parties at the time of pronouncement of this order.