J.N. Bhatt, C.J.
1. By this petition the Union of India has assailed the legality and validity of the impugned order of the Central Administrative Tribunal, Patna Bench, Patna rendered in T.A. No. 6 of 1997, recorded, on January 7, 2005, interalia, quashing the order of dismissal from service by the appellant which came to be made pursuant to the result of the domestic enquiry against the respondent-original petitioner, who was working as an Assistant Foreman and later on promoted to the post of Scientific Assistant 'C' Grade in the year 1974 and while he was discharging his duty in the Reactor Operation to handle heavy water to be used for Atomic Power in Heavy Water Plant at Kota, there was an incident, which is the foundation stone of the entire litigation, which has led to this writ petition. The original petitioner, respondent herein, came to be charge-sheeted on the basis of an incident which occurred on July 22, 1975, upon an allegation to have taken 'Heavy Water.' An Enquiry Officer was appointed after the suspension of the original petitioner. The allegation of alleged misconduct as levelled by the department was countered by the original petitioner. Upon conclusion of the enquiry, the petitioner, departmental authority, passed an order of dismissal from the service accepting the report of the Enquiry Officer.
2. The order of dismissal from the service was questioned initially, before the Central Administrative Tribunal, Rajasthan Bench, which later on came to be transferred to the Central Administrative Tribunal, Patna Bench, Patna. The Tribunal upon critical appraisal, deep probe and evaluation of the entire documentary, as well as, 'viva-voce' evidence and the mechanism for holding the domestic enquiry reached to the conclusion that the impugned order of dismissal from service recorded by the petitioner is suffering from vice of breach of the principle of natural justice, as well as, vice of law.
3. Consequently, the impugned order came to be reversed. In the peculiar situational reality and the factual profile the Tribunal thought it expedient not to permit the department to reinitiate or restart the departmental proceedings upon completion of the requisite formalities and upon observance of the principle of natural justice.
4. The appellant being aggrieved by the said order recorded by the Tribunal against it and in favour of the respondent-original petitioner, has, now, come up, before this Court questioning its legality and validity by invocation of the provisions of Articles 226 and 227 of the Constitution of India.
5. Learned counsel appearing for the parties have, offered their submissions. They have, also, taken us through the necessary materials and the relevant evidence from the record in course of their submissions.
6. Incidentally, it may, also, be mentioned that the counsel appearing for the parties have stated that the respondent-original petitioner who has been victim of so called intake of 'Heavy Water' has been present in the Court and upon their joint request he has, also, explained the effect of intake of 'Heavy Water' from the 'Radiation Protection Training Course' for clarification, elucidation and explanation of certain scientific and technical terminology placed on record.
7. We have, also, been taken through the relevant case law relied on by the learned Counsel for the petitioner Union of India on the point of exercise of discretion at the time of passing an order for restarting of inquiry de novo in a given situation like one in the present case, on hand.
8. We have, dispassionately, scanned and screened the text and tenor, content and the texture of the entire impugned order. The Tribunal in a greater details articulated direct infraction and non-performance and observance of the material principles of doctrine of natural justice. The following aspects which we propose to highlight without further going into the meticulous details thereof would not leave any doubt in the mind about the finding of the Tribunal recorded by assigning factual circumstances for the purpose of holding non-observance of the principle of natural justice:
1. The non-production of the attendance register which was specifically requested for, by the petitioner to the Enquiry Officer, and
2. Non-production of Descriptive log book, which were very relevant documents to be produced, had not been produced.
3. No other (sic) documentary evidence was produced to support the charge despite the specific defence of the original petitioner that by an unfortunate mishap due to defective hose pipe 'Heavy Water' started flowing or leaking uncontrolled and there was a spillage of 'Heavy Water', on June 16, 1975.
9. The question whether there was as such a spillage or not could have been highlighted or enlightened by production of the said document regarding the spillage of even a drop of 'Heavy Water' in such a plant.
10. It is a fundamental doctrine of service Jurisprudence that for exercise of powers under the disciplinary jurisdiction the Master or Management is obliged to hold free and fair domestic enquiry by giving an opportunity of hearing to the delinquent Officer and by full observance and compliance of the principle of natural Justice. In the event of any infraction thereof, the ultimate outcome or offer of the domestic enquiry obviously and undoubtedly would not stand the scrutiny of the judicial review.
11. Even during course of submissions before us nothing has been, successfully, shown or nothing has, clearly, emerged or spelt out from the record to dislodge and dynamite the ground on which the impugned order of dismissal from service recorded by the appellant against the respondent-original petitioner came to be made. We, therefore, find that the opposition against the impugned order reiterated before us after one unsuccessful attempt before the Tribunal must, also, end in smoke, as it has no legs to stand.
12. Apart from this, we are convinced that when a person of a scientific temperament like the original petitioner performing the duty as an operator of a plant of 'Heavy Water' had no reason to consume heavy water which has, undoubtedly, a radiation and have an adverse impact on the anatomy. It is not the case that he had tried to steal or take away 'Heavy Water' for personal gain. In the situational and peculiar factual profile it was necessary, also, for the appellant to be more sensitive to the issue if not as a respectable guardian of the ward-employee, a Scientist, but atleast to accept manifested scientific approach if not humanitarian.
13. What worth-reason was there for a man who has been in such a vital and important operational duty to intake or consume 'Heavy Water', since the defence raised and propounded by the original petitioner-respondent therein, is probably not very much highlighted and attracted the attention of the Tribunal as manifested from the impugned judgment. It is not, seriously, addressed.
14. When we are broadly agreeing with the reasons assigned in the impugned order, we do not propose to further meticulously divulge into it, but suffice it to say that we are unable to resist the temptation of placing it on record that in a Country like ours, more so when it is branded as a 'Welfare State', it is obligatory to radiate an imprint of sensitiveness to the Humanitarian Approach and if not at least scientific way of appreciating such an episode which was a mishap which could not be said to be due to unusual act of the Officer working as a Scientist and who has been suffering since last more than three Decades since the enquiry being initiated, as early as, in 1975, and it has been passing through a very long legal conduit pipes for attaining finality.
15. It is very unfortunate and we are sorry to refer and observe that such an insensitiveness, if not inhumanity, even in a case of management of such a very significant Scientific project which a country could be proud of has not gone into such an aspect and it has hoodwinked against an employee, moreso, when the employee is working as a scientific personnel.
16. It is, really, very high time when the globalisation wind has spread over the entire world that we become vigilant, circumscribe and prepare to face the new challenges of the remaining period of twenty first century. As India is a very high potential country for the future in the global road map, such an expectation is obvious by a judicial conscience from a management which is an atomic power plant upon giving a substantial and significant contribution in building a new India in a run to build a great developed country which is the vision of many by 2020.
17. With this in mind, from the main road we come back to the core issue which deals with the question of payment of back wages and other retiral dues which is one plank of challenge before us in this petition and the emphasis is placed on a system in the focus for the reason that first is legless or lame. It is in this context, it has been propounded on behalf of the appellant by learned Counsel that a person who has not suffered any disability on the anatomy cannot be paid full back wages which appears to be justified.
18. As we have, also, seen, as explained to us, technical aspect in terms of the probable effect of acute whole body doses of such 'Heavy Water' depending upon the quantity which is measured in scientific term as 'Rem' which means 'Rontgen Equivalent to Man' as provided in a book or manual titled as 'Radiation Protection Training Course' at para 8, which shows that if the quantity of dose is more than 0-25 'rem' what is the ramification and impact on the human anatomy, as well as, failure of the department on the technical ground of non-observance and performance of natural justice.
19. It is not a right 'ipso-facto' of victim of a dismissal order and upon passing of an order of reinstatement hundred percent back wages to which we partly find ourselves in agreement in the light of the entire factual profile. The discretion is to be exercised within the parameters and the guidelines provided in the latest pronouncement of law on this by the Court as part of service jurisprudence.
20. Upon having taken into consideration the rival submissions with regard to the quantum of back wages and the guidelines evolved and highlighted in the latest proposition of law on this count, we are of the opinion that hundred percent back wages 'ipso facto' awarded in the impugned judgment of the Tribunal cannot be sustained.
21. Probably, this aspect appears to have been not properly focused, as well as, not addressed by the Tribunal itself. But, that is not all. When a person seeks equitable relief by invocation of discretionary power, it is incumbent upon the Court to consider various aspects. Since the principle of right to claim full back wages is not found nor it was a fact nor inherent, it has to be adjudicated upon keeping in mind the various factors and parameters pertaining to the person and emerging from the record of a given case and while viewing it in the backdrop of the facts of the present case and considering the entire factual profile, as well as, parameters, we are of the opinion that the ends of Justice will be satisfied if 60 per cent of the back wages are awarded instead of 100 per cent as directed by the Tribunal.
22. The other retiral benefits, obviously, shall have to be considered in the light of 60 per cent back wages.
23. In the epilogue, we would only again voice our concern that the department of Atomic Power and its management, which is a generator of power and a very powerful force should not be insensitive to the human aspect, moreso, in a case of personnel, in such a factual realities because it is always engaged in the power production of the country must uphold the proposition that forms part of Modern Management 'Mind your man and your man will mind every thing' which is the secret of success of many managements. This aspect of life and as such a fair approach which is Humanitarian must form part of the scientific management and is necessary to be dealt with humanitarian and spiritual aspect otherwise a sane will be misplaced and misguided man will be proliferating.
24. We, therefore, caution the department for future consideration of such cases not to be unconcerned with Humanitarian and Scientific approach in Human Relations.
25. Before parting, let there be one more direction which, now, we deem it to be not impulsive but imperative that despite long spell of three decades nothing has been so far paid after the dismissal of the respondent-original petitioner. It is, therefore, now directed that the appellant Union of India shall pay an amount due and payable including all retiral dues and 60 per cent of back wages minus the amount paid during the period of suspension by way of subsistence allowance as expeditiously, as possible but not later than March 31, 2006 and counsel appearing for the appellant shall submit a written compliance report to the Registry of this High Court within 15 days thereafter. If no report has been filed by counsel for the appellant by, April 15, 2006, before the Registry of this High Court, the Registrar, Judicial, shall bring up the matter to our notice appropriately seeking further order and direction in that behalf which may include an amount of interest to be awarded on delayed payment.
26. With this observation in the foregoing paragraph and grounds highlighted this writ petition shall stand partly allowed with exemplary cost of Rs. 10,000/-in view of negative approach and long delay in such matter.