Union Of India Secretary Ministry Of Home Affairs vs. Umesh Singh

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 2574 OF 2022 [@ SPECIAL LEAVE PETITION (C) NO. 9778 OF 2018]

UNION OF INDIA & ORS. Appellant(s)

VERSUS

UMESH SINGH Respondent(s)

O R D E R

Leave granted.

2. The challenge in the present appeal is to an order dated 07.11.2017 passed by the High Court of Calcutta in MAT No. 464 of 2015 whereby discharge of the respondent under Rule 26 of the Border Security Force Rules, 1969 was set aside and the respondent was declared to be 'in-service' throughout.

3. The respondent herein joined as a Constable in the Border Security Force on 01.03.1990. He was served with a Show Cause Notice on 06.07.1996 for the reason that he has been inflicted with four punishments in a service period of five years and adverse entries were recorded in his Service Book. Therefore, he was unsuitable for being retained in the Force. The respondent was thus discharged from service on 10.08.1996.

4. Aggrieved, the respondent filed a writ petition before the High Court. The High Court set aside the order of discharge with a direction to reconsider the

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reply filed by the respondent. A detailed order was subsequently passed by the Commandant, 30 BN, BSF after such order of the High Court dated 11.02.2003. The said order was again challenged by the respondent before the Writ Court.

5. The High Court, on a wholly untenable ground, allowed the writ petition for the reason that though the representation has been rejected, but the consequential order of discharge has not been passed. 6. We have heard the learned counsel for the parties at length and find that the respondent was already discharged and it was only consideration of his reply which was warranted by the order of the High Court. Had the Appointing Authority considered some merit in the reply filed by the respondent, he would have been entitled to consequential benefits but not otherwise. In Managing Director, PCIL, Hyderabad v. B. Karunakar (1993) 4 SCC 727, the question examined was the effect of non-supply of copy of the enquiry report. This Court held that if 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. It was held as under: -

31. Hence, in all cases where the enquiry

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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.

7. In D.C. Roy v. Presiding Officer, M.P. Industrial Court, (1976) 3 SCC 693, this Court was examining the question as to whether the appellant is entitled to back wages from the date of dismissal until the date on which the Labour Court delivered its judgment after the employer proved misconduct before the Labour Court. It was held as under: -

13. The second contention must also therefore fail. We would, however, like to add that the decision in P.H. Kalyani case is not to be construed as a charter for employers to dismiss employees after the pretence of an inquiry. The inquiry in the instant case does not suffer from defects so serious or fundamental as to make it non est. On an appropriate occasion, it may become necessary to carve an exception to the ratio of Kalyani case so as to exclude from its operation at least that class of cases in which under the facade of a domestic inquiry, the employer passes an order gravely detrimental to the employee's interest like an order of dismissal. An inquiry blatantly and consciously violating principles of natural justice may well be equated with the total absence of an inquiry so as to exclude the application of the 'relation-back' doctrine. But we will not pursue the point beyond this

as the facts before us do not warrant a closer consideration thereof.

8. Thus, the order of discharge on account of the conduct of the respondent would relate back to the order of discharge initially passed.

9. In view thereof, we find that the order passed by the High Court is clearly erroneous in law. The same is hereby set aside. The writ petition filed by the respondent before the High Court is dismissed. The present appeal is allowed.

.......................J. [ HEMANT GUPTA ]

.......................J. [ V. RAMASUBRAMANIAN ]

New Delhi; MARCH 30, 2022.

ITEM NO.7 COURT NO.11 SECTION XVI

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition for Special Leave to Appeal (C) No(s). 9778 of 2018

(Arising out of impugned final Judgment and order dated 07-11-2017 in MAT No. 464 of 2015 passed by the High Court at Calcutta)

UNION OF INDIA & ORS. Appellant(s)

VERSUS

UMESH SINGH Respondent(s) (IA No. 112556/2018 - STAY APPLICATION)

Date : 30-03-2022 This matter was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN

	For Appellant(s)	Ms. Madhavi Divan, ASG
		Mr. S. S. Ray, Adv.
		Mr. Akshay Amritanshu, Adv.
		Mr. Anirudh Purushottam, Adv.
		Mr. A. K. Sharma, Adv.
		Mr. B. V. Balaram Das, AOR

For Respondent(s) Mr. Anubhav, Adv. Mr. Yashwant Singh Yadav, Adv. Ms. Preeti Yadav, Adv. Mr. Vijay Pal, Adv. Mr. Ravi Karhana, Adv. Mr. Amit Kumar, Adv. Mr. Rameshwar Prasad Goyal, AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The Civil Appeal is allowed in terms of the signed order.

Pending interlocutory application(s), if any, is/are disposed

of.

(JAYANT KUMAR ARORA) (RENU BALA GAMBHIR) COURT MASTER COURT MASTER

(Signed order is placed on the file)