M B SHAH Vs. DDO MALPUR

JUDGEMENT

(1.) (His Lordship after discussing the facts and evidence in the case held that:- As a matter of fact the whole inquiry has been conducted in a slip shod manner and the report of the Inquiry Office is also so laconic and shabby that it could not have been taken as the basis by the District Development Officer to pass any order of penalty much more imposing the extreme penalty of dismissal. His Lordship therefore Held:- that the impugned order of dismissal dated 27-9-1976 was vitiated in as much as it was against the statutory rules and especially Rule 7 of the Gujarat Panchayat Service (Discipline & Appeal) Rules 1964 infringing the principles of natural justice and fair play and therefore void and ineffective and it must therefore be quashed and a declaration be granted accordingly that the impugned order is null and void and ineffective and the petitioner continues in service all along as if no such order bad ever been passed; His Lordship further observed :-) ... ... ... ... ... ... ...

(2.) The next question which arises is whether this Court should direct the respondent Panchayat to pay all the back wages and to grant benefits accrued to the petitioner during the course of these years as a result of the order being declared null and void ? Mr. Patel appearing for the respondent Panchayat urged that in the matters of employment this Court should not in exercise of its jurisdiction under Article 226 of the Constitution over the orders in quasi judicial proceedings of administrative authority resulting in dismissal of an employee give positive direction for payment to the employee all the full back wages if the order is held to be illegal and consequently quashed. In support of his contention he invited my attention to a decision of the Supreme Court in Civil Appeal No. 274 of 1970 decided on January 16 1980 between Managing Director Uttar Pradesh Warehousing Corporation and Ors v. Vijay Narayan Vadpayee where the order of dismissal of an employee of the appellant Corporation was held to be bad in law as it was made in flagrant violation of all the known principles of natural justice. A contention was raised on behalf of the appellant Corporation that even if the dismissal of the respondent employee was bad in law and liable to be quashed the High Court could not in exercise of its certiorari jurisdiction under Article 226 of the Constitution give further direction that the employee should be reinstated in service with full back wages and therefore the High Court inasmuch as it granted such a declaration it overstepped the bounds of its jurisdiction. Upholding that contention Sarkaria J. speaking for the Court observed as under:-

(3.) I am afraid that the learned Advocate for the respondent Panchayat reads more than what is warranted in this decision It cannot be urged that this decision is an authority for proposition that the High Court cannot in exercise of its jurisdiction under Article 226 issue appropriate directions for back wages once it is found that the order removing or dismissing a public servant is nonest on the ground of it being violative of principles of natural justice or against the statutory rules. Sarkaria J. in the said decision speaking in the context where the respondent who was an employee of the appellant Corporation challenged the order of his dismissal by moving Allahabad High Court for a writ of certiorari to quash the order of his dismissal on the ground that it was violative of principles of natural justice and praying for a declaration that the Corporation be restrained from recovering the sum of Rs. 549-61 Ps. from him. The respondent employee did not pray for any further writ of mandamus or a writ or direction in the nature of mandamus enjoining the Corporation to give him hack wages if the order was held to be a nullity. It was in that limited context that the Supreme Court held that the High Court acts only in a supervisory capacity and not as appellate Tribunal when it is called upon to exercise its certiorari jurisdiction under Article 226 of the Constitution. Even in context of certiorari jurisdiction the Supreme Court has not laid down as a blanket proposition that High Courts have no jurisdiction to issue necessary directions in the matter. Sarkaria J. has therefore emphasised that ordinarily High Court should not while quashing an illegal order of dismissal give a positive direction for payment of back wages since it involves consideration of fact also whether the aggrieved employee was wholly out of employment and without any income or was gainfully employed wholly or partly during this period. On matter of principle or authority it cannot be urged successfully that the High Court cannot issue a writ of mandamus or a writ order and/or direction in nature of mandamus once it is found that the order of dismissal or removal was non-est enjoining an employer who has clearly wronged and is liable to pay all the back wages.