The
Board of Management of C.S.Teducational Institution & Vs. A. Raghupathy Bhat
& Ors [1997] INSC 1 (3 January 1997)
K.
RAMASWAMY, G.T. NANAVATI
ACT:
HEAD NOTE:
O R D E
R
Leave granted.
We
have heard counsel on both sides.
This
appeal by special leave arises from the order of the Karnataka High Court, made
on 18.4.1996 in C.R.P. Nos. 934/93 and 2362/93 and the order dated 5.8.1996 in
C.P. Nos. 365 and 366 of 1996.
The
admitted position is that the respondent was suspended from service on
18.3.1989. Domestic enquiry was conducted and the order of removal was passed.
A petition was filed by the respondent against the said order before the
Tribunal constituted under Karnataka Education At, 1983.
The
Tribunal on finding that the respondent was not paid the subsistence allowance,
set aside the order of termination and remitted the matter for fresh enquiry.
In revision, the High Court stayed the domestic enquiry and the civil petition
was allowed by the High Court. Thus, this appeal by special leave.
It is
not necessary for us to go into the merits of this matter. Rules 12(3) and
12(4) of the Rules framed under Karnataka Private Educational Institutions
(Discipline & Control) Act, provide that in a case where a penalty of
dismissal, removal or compulsory retirement from service imposed upon an
employee is set aside in an appeal or on review under these Rules and the case
is remitted for further inquiry or action or with any other direction or under
Rules 12(4) of the Rules is rendered void in consequence of or by a decision of
a Court of law and the disciplinary authority on consideration of the
circumstances of the case, decides to hold further enquiry against him on the
allegations on which the penalty of dismissal, removal or compulsory retirement
was originally imposed, the employee shall be deemed to have been placed under
suspension by the appointing authority from the date of the original order of
dismissal, removal or compulsory retirement and shall continue to remain under
suspension until further orders. Thus, it can be seen that the Rules provide
for further enquiry to be conducted by the disciplinary authority. It is
settled law that the employee has power to conduct enquiry afresh from the
stage at which the illegality in the proceedings is found vitiating the action.
The High Court is, therefore, not right in foreclosing further enquiry after
upholding the order of the Tribunal which has held that there is need for
further enquiry and the order of removal was set aside because of non-payment
of subsistence allowance. The question whether the order of removal was bad in
law for non-payment of subsistence allowance is left open, as it has not been
canvassed. The disciplinary authority's proceeding further, as a consequence of
remittance of the order, is clearly adumbrated under Rules 12(3) or Rule 12(4),
as the case may be. It is now well settled by a Constitution Bench decision of
this Court in Managing Director, ECIL, Hyderabad & Ors. vs. B. Karunakar
& Ors. [(1993) 4 SCC 727] that as a consequence of setting aside of order
or termination or removal or dismissal further enquiry is required to be
undertaken from that stage. Pending enquiry, the employee must be deemed to be
under suspension. Under these circumstances, the High Court was not right in
foreclosing the further enquiry. The appellants are directed to continue and
complete the enquiry within a period of four months from today and until the
final order, the respondent must be deemed to be under suspension.
We are
informed that the respondent has been paid a sum of Rs.2,00,000/- (Rupees two lacs
only), pursuant to the directions issued by the High Court. The said payment
will be subject to the result of the enquiry and final order and must be
adjusted, as a consequence of the order of the enquiry report towards
subsistence allowance or otherwise.
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