Personnel Manager, North Eastern Coalfields Vs. Mukul Kumar Chaudhuri and ors. - Court Judgment

Excerpt:
- sanjib banerjee, j.1. the employee and the employer are both in appeal from the final order made on the writ petition by which the order of dismissal of the employee has been set aside but he has not been allowed back wages despite reinstatement. the employer seeks to support the order of dismissal; the employee demands his salary for the period that he has been wrongfully prevented from discharging his duties.2. a post-graduate from the indian institute of technology, kharagpur, the writ petitioner joined the services of coal india limited in 1982 and, at the time of his alleged misconduct, was posted at the north eastern coalfields. the writ petitioner remained absent from duty for about six months, tendered his resignation which was not accepted and was permitted to resume his post. following an enquiry and the two-stage proceedings, he was dismissed from service on november 29, 2000. he sought to exercise his right of appeal by lodging it in january, 2002 which stood rejected on february 19, 2002 on the ground of delay.3. w.p. no. 1014/2002 was launched before this court under article 226 of the constitution of india which was disposed of on may 23, 2002. it was noticed that the grounds for condonation of the delay that had been cited by the writ petitioner had not been considered by the appellate authority. the final order on the first writ petition required the order of dismissal to be kept in abeyance and directed the appellate authority to consider the matter 'in accordance with law including the question as to whether grounds have been made out by the petitioner for condonation of delay in filing the said appeal after affording the petitioner an opportunity of being heard in the matter.'4. in apparent compliance of such order of may 23, 2002, the appellate authority deliberated over the matter and offered the following cryptic words for the employee by a communication of september 30, 2002:the board considered the appeal, vis-a-vis other papers and documents as placed with the agenda note and after detailed deliberation came to the conclusion that there is no merit in the appeal preferred by shri m.k. choudhury, ex-manager (system), nec against the order of penalty of removal from service and the order passed by the disciplinary authority was proper.in this background the appeal dated january 21, 2002 preferred by shri m.k. choudhury, ex-manager (system), nec was rejected.5. the writ petitioner made a belated application for review of the order dated september 30, 2002 before the appellate authority which remained unconsidered for some time whereupon he trudged back to this court by way of w.p. no. 1886/2004. such writ petition failed on october 15, 2004 on the writ court's reading of the appropriate provision for review permitting only the authority to review its order suo motu without giving a person affected by an order to set into motion any process of review. the employee instituted a third writ petition being wp no. 2568 (w)/2005 challenging the order of removal from service which was dismissed on february 21, 2005 as being not maintainable in view of the order made on the second writ petition. there was, however, a glimmer of hope left for the employee at the foot of the order of february 21, 2005:.it might be true that his lordship did not decide such issue on merit, even then i am unable to entertain this writ petition in absence of a proper clarification being made by his lordship.6. the employee was thus driven to seeking a clarification of the order disposing of the second writ petition which was summarily dismissed on april 1, 2005. the order of dismissal of the second writ petition was challenged in the meantime and there was some succour for the employee upon the appellate court holding on august 17, 2005 that if a forum had been conferred the authority to review, whether or not the exercise thereof was to be suo motu, the process could be activated by a person affected by the order sought to be reviewed.7. it took the appropriate authority a year-to the day-to churn out an order on the review. the verisimilitude of such order with the one passed on the employee's appeal may tempt a person to look into the rules as to whether orders of dismissal were to conform to a. particular form; a matter that also engaged the attention of the learned single judge, the precise words, shorn of all fat from the meat, appear to be an ultimate exercise in parsimony:in terms of the order dated august 17, 2005 of the hon'ble high court the appeal dated august 16, 2004 of shri m.k. choudhury, ex-manager (system), nec petitioner was placed before the 255th meeting of the board of directors, cin held on march 28, 2006. the board considered the appeal november 23, 2005 and august 16, 2004 of shri m.k. choudhury, ex-manager (system), nec and other documents and after detailed deliberation, came to the' conclusion that there was no merit in the appeal and order passed by the disciplinary authority was just and proper. the appeal preferred by shri m.k. choudhury was disposed of by the board.8. thence came the third writ petition being w.p. no. 1134/2006 challenging the order of august 17, 2006 which culminated in the order under appeal. the learned single. judge has noted that the order of removal from service was not available on record and the one that had all along been passed off as the order of dismissal was merely a communication of november 29, 2000 to the employee that he stood dismissed. the employer suggests that between the papers travelling back and forth within the organisation in course of the appeal and the review or to and fro in connection with the several rounds of proceedings in court, such primary document was misplaced.9. the employer assails the order allowing reinstatement on the ground that it was not merely founded on the missing order of dismissal but on the additional count of the employer's conduct in the manner in which the appeal and review were dealt with and the failure to 'honour the orders of this court...and (having) brazenly ignored the principles of natural justice.' the employer says that at the very highest the learned single judge may have required the appropriate authority to reconsider the matter afresh but in making an order of reinstatement the learned single judge fell into error.10. the employee claims that facts such as these and the unabashed demonstration of prejudice of the decision-making authority precluded any confidence in a fair consideration of his case on remand and submits that upon reinstatement on such ground he is entitled to back wages.11. the stereotyped orders in the appeal and the review-both proceedings being extremely reluctantly entertained only upon directions of this court - leave little room for doubt as to the fate that would have awaited the writ petitioner if the matter had been left to be decided by the employer. a charge of constructive misconduct on the ground of alleged unexplained absence of six months, when the employee had subsequently been permitted to resume his post and discharge his duties for a period of a year and a half before his dismissal, is not as grievous an offence that merited the treatment that has been meted out to this hapless employee. added to such fact is the admitted position that the order of dismissal cannot be traced nor can a copy thereof be produced. it may, in fact, not have even existed. the employee's grievance that he was never favoured with a copy of the order of dismissal remains effectively unquestioned. given these facts, there could have been no better recipe for the self-cornbustion of the order of dismissal.12. if on repeated invitation, the decision-making authority failed to construct or supplement the reasons for dismissal; if the in-house mechanism failed to highlight any material that it must surely have found to be damning against the employee in course of its deliberations over the appeal and the review; the writ court was left nary a choice. for the employer to have been afforded the luxury at such stage to re-build its case from the very beginning and breathe reasons into the order of removal from service would have amounted to a travesty.13. the manner in which the employer or its appropriate authority has conducted itself leaves a lot to be desired. it is not implausible to have concluded on such facts that the element of prejudice that the employer's conduct betrays would have brought about a fait accompli on remand. the test in such case is one of prejudice; whether a person had received a fair deal considering all things. upon assessing such conduct it could be fairly inferred that the employee would have been left to hungry sharks in deep waters if he were subjected to a remand where he may have drowned long before his flesh was removed from his bones. the learned single judge took an eminently acceptable view and the seemingly unusual order of reinstatement needed to be made on such facts.14. twice over the employee was condemned by non-speaking orders when the nature of things demanded reasons to be supplied. a party appearing before an appellate authority is entitled to know, either expressly or inferentially stated, what it is to which the authority is addressing its mind. neither on appeal nor on review was this employee told of his grievous fault for which he suffered dismissal. the dictum in the judgment reported at s.n. mukherjee v. union of india : 1990crilj2148a may be profitably referred to in the context:36. reasons, when recorded by an administrative authority in an order passed by it while exercising quasi judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. but the other considerations, referred to above, which have also weighed with this court in holding that an administrative authority must record reasons for its decision, are of no less significance. these considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. the said purpose would apply equally to all decisions and its application cannot be confined to decisions which arc subject to appeal, revision or judicial review. in our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. it may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. the extent and nature of the reasons would depend on particular facts and circumstances. what is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. the need for recording of reasons is greater in a case where the order is passed at the original stage. the appellate or revisional authority, if it affirms such an order, need not give reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.15. whether or not the appellate authority was aware of the last sentence from the passage, its application of the principle was far too literal. both the appellate and the review orders convey a sense of the authority having consulted the documents, yet they do not disclose whether the authority concurred with the reasons. the inescapable inference is that the appellate authority did not discover any reasons for the dismissal of the employee from service and the reviewing authority did not find any reasons in the appellate order.16. the rationale of a decision is found in the reasons that lead to the outcome. the appellate and review orders record mere conclusions and nothing by way of substance to support such conclusions. reasons are the lifeblood of judicial and quasi-judicial orders and trace the journey between the facts and the conclusion. it is the chain of reasoning and its link to the conclusion that is tested in appeal or revision or in course of judicial review. administrative orders of such nature, much like judicial orders, need to meet the twin tests of 'why' and 'what.' it is the 'why' of the reasons that sustains the 'what' of the conclusion. reasons are the safeguard against the ipsi dixit of the decision-making process. they disclose how the mind has been applied to the matters in issue and convey the nexus between the matters that have been considered and the conclusion based thereon. the justification and the reasonableness of a conclusion depend on the reasons given in support thereof. the 'why' of an order of such nature needs the legs of the 'what' of reasons to stand on. neither the appellate order nor the one made on review has any feature that can even masquerade for the reasons that ought to be the indispensable attribute of a quasi-judicial order.17. the in-house mechanism of the employer could have afforded the employee a chance to have the matter reagitated if the appropriate authority found that there were either no reasons in support of the order of removal from service or that the document containing such reasons, if ever it existed, had been misplaced. the perfunctory treatment of a dismissed employee, the callous indifference to his understandable anguish coming as it did upon the employee having been allowed to resume his duties after his absence from the post - lead to the inexorable conclusion that the learned single judge drew from the facts that were on display before the court. if the employee was deserving of retribution, he has had his fair share of it for remaining deprived and in suspense for the substantial period since the non-speaking order of dismissal. the order of reinstatement calls for no interference and is affirmed.18. when reinstatement is directed on a substantive count as in the present case and not on a technicality of any infarction of a rule of business or procedure, back wages should ordinarily follow. for back wages to be disallowed despite reinstatement under such circumstances, cogent reasons need be made out. if reinstatement is consequent upon the guilt not being established, there is no occasion for any penalty being inflicted by applying the no pay for no work rule. this employee has fought all along to get back to work.19. there is no discussion in the order under appeal as to why despite reinstating the employee on such facts, he was found to be undeserving of back wages. the employee's appeal succeeds. he will be entitled to back wages though this may not be read to permit him to claim for the period that he remained absent prior to the year 2000. the back wages should be paid within a period of 10 weeks from date.20. the order under appeal is modified to such extent. a.p.o. no. 484/2007 and a.p.o. no. 485/2007 are disposed of and the interim applications filed by the employer in his appeal, g.a. no. 795/2008 and g.a. no. 1803/2008, are dismissed. there will be no order as to costs.21. urgent certified photostat copies of this judgment, if applied for, be issued to the parties upon compliance with all requisite formalities. i agree.