Judgment:
In the High Court At Calcutta Constitutional Writ Jurisdiction Original Side WP874of 2014 Dayanand Paswan -Vs.Coal India LTD.& ORS.Before For the Petitioner : The Hon’ble Justice Arijit Banerjee : Mr.Subrata Ganguly, Adv.For the Respondents : Mr.R.N.
Majumder, Adv.Mr.S.M.
Obaidullah, Adv.Mr.Sanchita Barman Roy, Adv.Heard On : 27.08.2015, 05.10.2015 & 07.01.2016 CAV On : 13.01.2016 Judgment On : 19.05.2016 Arijit Banerjee, J.:(1) In this application the petitioner challenges the departmental proceeding culminating in the letter of termination of his service dated 11/13 December, 2013 and prays for a direction on the respondents to allow him to resume duty forthwith and for payment of all arrears for the period from February, 2002 till date.
The petitioner’s case:(2) On 18 April, 1995 the petitioner was appointed as underground loader under Eastern Coalfields LTD.(in short ‘ECL’).He was then 22 years old.
(3) By an office order dated 5 May, 1999, the petitioner was allowed to join as Switch Board Attendant for three months with effect from 6 May, 1999.
(4) The petitioner contends that due to unhygienic atmosphere prevailing in the vicinity of the colliery, he fell sick in the year 2002 and was unable to attend work.
In fact, he was absent from duty from 1 February, 2002.
A charge-sheet dated 5 April, 2003 was issued by the Management to the petitioner for being absent from duty with effect from 1 February, 2002 without information to or prior permission of the competent authority.
This was followed by an inquiry proceeding which resulted in the enquiry officer’s report dated 2 May, 2003.
A second show-cause notice dated 20/21 June, 2003 was issued to the petitioner.
The petitioner contends that he received a copy of the enquiry report alongwith the second show-cause notice on 20 June, 2003.
(5) An order of dismissal dated 1 August, 2003 was issued by the Management and the petitioner’s service was terminated.
The petitioner contends that he received such termination letter on 11 September, 2003.
He further contends that the person issuing the termination letter had no authority to do so.
(6) The petitioner contends that he had good reason for his absence from duty being his ill health, which the Management or the enquiry officer did not consider.
(7) The petitioner challenged the order of dismissal by filing WP1362of 2010 in this Court.
By an order dated 9 August, 2011 this Court held that there was procedural irregularity with regard to the preparation of the enquiry report by the enquiry officer inasmuch as the enquiry officer held the petitioner guilty of the charge of unauthorised absenteeism without dealing with the medical papers which would show that the petitioner had sustained injury and was treated at Zilla Parishad Hospital, Dhanbad on recommendation of the Colliery.
This court found that the enquiry report and the punishment of termination imposed on the basis of such enquiry report were not sustainable in law and the same were quashed.
Liberty was granted to the respondent authority to proceed in the disciplinary proceeding on the basis of charge-sheet dated 5 April, 2003 in accordance with law de novo from the stage of enquiry proceeding and to conclude such proceeding within a period of four months from the date of the order.
It was clarified that if the disciplinary proceeding was not concluded within the period of four months, it would be presumed that the proceedings against the petitioner have been dropped.
(8) By a letter dated 2 December, 2011 the petitioner was called upon to appear before the enquiry officer on 5 December, 2011.
(9) By his letters dated 4 and 5 December, 2011 the petitioner contended that since his order of dismissal had been set aside, he should not be asked to appear before the enquiry officer without fiRs.being reinstated in service with full back-wages.
(10) The petitioner did not appear before the enquiry officer and the enquiry proceeding was conducted ex parte and concluded on 24 December, 2011.
The petitioner received a second show-cause notice alongwith copy of the enquiry report on 5 January, 2012.
The petitioner was found guilty of the charge of unauthorised absenteeism for a period of 14 months as mentioned in the charge-sheet dated 5 April, 2013.
The petitioner received the order of dismissal dated 3/4 February, 2012 in due course.
(11) The petitioner again approached this court by filing WP840of 2012.
By an order dated 31 July, 2013, this Court held that the petitioner’s demand that he be reinstated pending the second enquiry was not altogether without merit and as such his absence from the second round of disciplinary proceedings could not be called unjustified.
This court set aside the ex parte order of dismissal dated 3/4 February, 2012 and directed that a de novo enquiry will commence as ordered by this Court’s earlier order dated 9 August, 2011.
The Management was directed to reinstate the petitioner within two weeks from the communication of the order but was granted liberty to suspend him pending the enquiry.
It was observed that the enquiry culminating in a final order should be concluded within four months of communication of the order and the petitioner was to be given an opportunity of hearing.
(12) The enquiry proceeding was held de novo and the petitioner participated therein.
The enquiry officer found the petitioner guilty of the charge of unauthorised absence.
(13) A second show-cause notice dated 2 December, 2013 was issued to the petitioner.
The petitioner replied to such show-cause notice by his letter dated 6 December, 2013.
The explanation given by the petitioner in his reply was not found acceptable by the disciplinary authority.
The company issued a letter of termination dated 11/13 December, 2013 dismissing the petitioner from service.
(14) In the aforesaid factual matrix Ld.
Counsel for the petitioner urged the following points before this Court.
(15) Firstly, he submitted that the punishment of dismissal imposed on the petitioner is disproportionate to the charge of which he was found guilty.
In this connection he relied on the following cases:- (i) Madhusudan Chowdhury-vs.-State of West Bengal, 2006 (1) CLJ (Cal) 386.
(ii) Maitrayee Ghosh-vs.-Kolkata Port Trust, 2008 (2) CHN85 (iii) Collector Singh-vs.-LML Limited, Kanpur, (2015) 2 SCC410 (iv) Chairman Cum Managing Director, Coal India Ltd.-vs.-Mukul Kumar Choudhuri, (2010) 2 WBLR (SC) 99.
(v) Pepsu Road Transport Corporation-vs.-Rawel Singh, 2008 LAB I.C.1694.
(vi) Bhagwan Lal Arya-vs.-Commissioner of Police, Delhi, AIR2004SC2131 (16) The second point urged by Mr.Ganguly, Ld.
Counsel, is that the charge-sheet must be specific and should disclose as to who has lodged the complaint against the charge-sheeted employee and other relevant facts.
(17) Thirdly, Ld.
Counsel contended that non-supply of documents to the delinquent officer deprives him of the opportunity to defend himself in the enquiry proceeding as in the instant case and, hence, the same has vitiated the order of termination.
In this connection Ld.
Counsel relied on a decision of the Hon’ble Supreme Court in the case of State of UP-vs.-Saroj Kumar Sinha, AIR2010SC3131 (18) Fourthly, Mr.Ganguly contended that non-examination of witness in an enquiry proceeding renders the proceeding bad.
In this connection he relied on a decision in the case of State of UP-vs.-Saroj Kumar Sinha (supra).(19) Ld.
Counsel then contended that the order of dismissal is based on no evidence and is an unreasoned order passed blindly on the basis of the enquiry report.
In this connection Ld.
Counsel relied on the following cases:(i) Nand Kishore Prasad-vs.-The State of Bihar, AIR1978SC1277 (ii) Nick (India) Tools-vs.-Ram Surat, (2004) 8 SCC222 (20) The next point urged by Ld.
Counsel was that the enquiry report took into consideration past conduct of the petitioner without the petitioner being put on notice that such conduct would be relevant.
This is not permissible in law.
In this connection reliance was placed in the case of Pradip Kumar Hazra-vs.-The Managing Director of DDST, 1988 (2) CLT359 (21) Ld.
Counsel then submitted that the order of dismissal was passed by an officer subordinate to the appointing authority which is not sustainable in law.
In the instant case, the Chairman-cum- Managing Director of the Company is the appointing authority and the order of dismissal was passed by the General Manager.
Hence, the order of dismissal is bad in law.
In this connection Ld.
Counsel relied on a decision of the Hon’ble Supreme Court in the case of Government of A.P.-vs.-N.
Ramanaiah, (2009) 5 Supreme 202.
(22) Ld.
Counsel submitted that long absenteeism is not an act of moral turpitude or dishonesty and an order of dismissal passed on that ground is bad.
In this connection he relied on a decision of the Hon’ble Supreme Court in the case of Mahinder Dutt Sharma-vs.-Union of India, AIR2014SC2009 (23) Ld.
Counsel for the petitioner also relied on the following three decisions which I will refer to later.
(i) Steel Authority of India Ltd.-vs.-Debasish Biswas, 2007 (2) CLJ (Cal) 209.
(ii) Dewan Singh-vs.-State of Haryana, AIR1976SC1921 (iii) Kumaon Mandal Vikas Nigam Ltd.-vs.-Girja Shankar Pant, AIR2001SC24 (24) On the basis of the aforesaid submissions, Ld.
Counsel prayed for quashing of the order of dismissal and reinstatement of the petitioner in service with full back wages.
Contention of the Respondents:(25) Appearing on behalf of the respondents, Mr.R.N.
Majumder, Ld.
Sr.Counsel, submitted that the petitioner was admittedly a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and he has an efficacious alternative remedy under the provisions of the said Act.
Accordingly the present writ petition should not be entertained.
(26) Ld.
Counsel submitted that the petitioner should have approached the Labour Court/Industrial Tribunal which has the power to reduce the quantum of punishment under Section 11A of the Industrial Disputes Act.
In this connection he relied on a decision of the Hon’ble Supreme Court in the case of The Workmen of M/S.Firestone Tyre & Rubber Co.of India PVT.Ltd.-vs.-the Management and Ors., AIR1973SC1227 In that case, the Hon’ble Apex Court observed that the legislature in Section 11A of the Industrial Disputes Act has made a departure in certain respects in the law as laid down by the Supreme Court.
For the fiRs.time power has been given to a Tribunal to satisfy itself whether misconduct on the part of the delinquent employee is proved.
This is so even regarding findings arrived at by an employer in a properly held enquiry.
The Tribunal has also been given the power, for the fiRs.time, to interfere with the punishment imposed by an employer.
(27) Ld.
Counsel then submitted that the attendance of the petitioner was very poor in the three years preceding the year in which the charge-sheet was issued.
His attendance was 76 days in the year 2000, 59 days in the year 2001 and 7 days in the year 2002.
He was a habitual absentee from work without intimation to the authority or prior permission.
Hence, the punishment of termination was justified in his case.
In this connection Ld.
Counsel relied on a decision of the Hon’ble Supreme Court in the case of L & T Komastu Ltd.-vs.-N.
Udayakumar, (2008) 1 SCC224 In that case, the Hon’ble Supreme Court referred to several of its earlier decisions and observed that an employee cannot as a matter of right claim leave of absence though that might be without permission and though there might not be any application for the same.
That would be gross violation of discipline.
In the facts of that case, the employee concerned was habitually absent from work.
A disciplinary proceeding was initiated against him after he remained absent unauthorisedly for 105 days.
The charge of unauthorised absence was proved in the departmental enquiry and the employee was dismissed from service.
This gave rise to an industrial dispute and the workman filed an application under the Industrial Disputes Act, 1947.
The Labour Court found that though the workman remained absent unauthorisedly, the extreme punishment of dismissal of service was too haRs.and disproportionate to the gravity of the charge.
It set aside the order of dismissal and the workman was directed to be reinstated with continuity of service but without back wages.
The Management challenged the Labour Court’s award by way of writ petition.
The Ld.
Single Judge modified the award and deprived the workman from continuity of service.
Both the Management and the workman appealed.
The Division Bench allowed the appeal of the workman to the extent of granting continuity of service to him.
The Management’s appeal was dismissed.
The Management approached the Hon’ble Supreme Court which set aside the orders of the High Court and the Labour Court and restored the order of termination of service of the concerned workman.
The Hon’ble Supreme Court held that though under Section 11A of the Industrial Disputes Act, the Tribunal has the power to reduce the quantum of punishment, it has to be done within the parameters of law.
Possession of power is itself not sufficient; it has to be exercised in accordance with law.
(28) Mr.Majumder then submitted that there was no irregularity in the departmental proceeding that was held.
The charge-sheet was very specific and there was nothing vague about the same.
The petitioner duly participated in the proceeding.
The second show-cause notice was served on him and he gave his reply to the same.
After considering everything, the competent authority decided to terminate his service and the decision does not warrant any interference.
(29) Ld.
Counsel referred to the Certified Standing Order in respect of M/S.Eastern Coalfields Ltd., Sanctoria, Burdwan, West Bengal.
Clause 26 of the said Standing Order enumerates acts of misconduct.
Clause 26.23 provides that ‘habitual low attendance or habitual absence from duty without sufficient cause’ is a misconduct.
Clause 26.29 provides that ‘absence from duty beyond ten days without sanctioned leave or sufficient cause or overstaying beyond sanctioned leave without valid reason’ is a misconduct.
Ld.
Counsel submitted that the petitioner had been given sufficient indulgence in the past but his misconduct demonstrates that he is not serious about his work.
Hence, the order of termination passed by the competent authority is fully justified.
(30) On the basis of the aforesaid submissions Mr.Majumder prayed for dismissal of the writ petition.
Court’s View: (31) I have carefully considered the rival contentions of the parties.
(32) At the very outset one must keep in mind that the petitioner has approached this Court in its high prerogative writ jurisdiction under Article 226 of the Constitution of India.
It is settled law that the writ court is generally not concerned with the decision under challenge but with the decision making process.
The Writ Court does not sit in appeal over the decision that is impugned before it.
It does not re- appraise the evidence on the basis of which the decision has been arrived at by the concerned authority or Tribunal.
So long as there was some evidence before the decision making authority, the Writ Court will not adjudge the sufficiency of such evidence.
If the decision has been arrived at by following a procedure which is fair and in consonance with the principles of natural justice, the Writ Court will be reluctant to interfere.
Even if in a particular matter more than one view is possible and the view taken by the decision making authority is a plausible one, the court in exercise of its writ jurisdiction will not intervene even if on the materials on record the court may form a different view.
The Writ Court does not function as a court of appeal.
It would not ordinarily substitute its view for that of the decision making authority so long as the decision is not perverse.
The exceptional cases where the Writ Court interferes are where the decision has been arrived at in breach of the principles of natural justice or where the decision is based on no evidence at all and is arbitrary or where the decision is ex facie contrary to the law of the land, be it statutory law or judge made law.
Even in those cases, ordinarily the Writ Court shall quash the decision and remand the matter to the concerned authority for fresh consideration in accordance with the law and fair procedure.
Generally speaking, the Writ Court does not usurp the jurisdiction of the decision making authority by substituting its own view in the place and stead of the view taken by the concerned authority.
This is not to say that the Writ Court does not have such power but it is a restriction imposed on itself by the Writ Court.
In very exceptional cases, to meet the ends of justice the Writ Court may substitute its own decision on merits for that of the authority concerned or the Tribunal.
What those circumstances are, it is not possible nor desirable to enumerate and exercise of such power would depend on the facts of a particular case.
(33) In the instant case, it is not in dispute that the petitioner was absent from work for about 14 months.
The petitioner contends that he was suffering from one ailment or the other continuously and as such it was not possible for him to attend work.
The respondents contended that there was not a single intimation from the petitioner during the entire period of his absence from work.
They contended that this was a gross case of unauthorised absenteeism and the order terminating the petitioner’s service was fully justified in the facts of the case.
(34) The fiRs.order dismissing the petitioner from service was passed on 1 August, 2003.
The said order was passed pursuant to an enquiry proceeding conducted ex parte as according to the respondents, in spite of notice being served on the petitioner he did not attend the enquiry proceeding.
The said order was challenged in WP No.1362 of 2010.
By an order dated 9 August, 2011 this Court set aside the dismissal order.
This court noted in its judgment that it appeared from the enquiry report that the enquiry officer had taken into consideration the fact of the petitioner’s sustaining injury and being treated at Zilla Parishad Hospital, Dhanbad on recommendation of the Colliery.
It also appeared from the enquiry report that the documents relating to the recommendation of the Colliery and other medical papers were submitted before the enquiry officer.
However, the enquiry officer did not deal with such documents at all.
Hence, there was procedural irregularity with regard to the preparation of the enquiry report and the punishment of termination of service which was based on the basis of such report, could not be sustained.
On that ground, the dismissal order was quashed.
(35) Pursuant to liberty granted by this court a fresh enquiry proceeding was initiated by the Management.
However, the petitioner refused to participate in such enquiry proceedings without he being fiRs.reinstated in service since the order of dismissal had been set aside.
As a result, the second round of enquiry proceeding was also held ex parte which culminated in an order dated 3/4 February, 2012 passed by the Disciplinary Authority, dismissing the petitioner from service.
This order became the subject matter of challenge in WP810of 2012.
By a judgment and order dated 31 July, 2013 the ex parte order of dismissal was set aside primarily on the ground that the petitioner had justifiable reason for declining to participate in the enquiry proceeding.
This court accepted the petitioner’s contention that without being reinstated he could not be required to participate in the enquiry proceeding.
This court directed that de novo enquiry would be conducted after the petitioner was reinstated in service and the management was granted liberty to put the petitioner under suspension pending the enquiry proceeding.
(36) Pursuant to the aforesaid order, the management initiated the enquiry proceeding afresh.
The petitioner duly participated in the proceeding.
The enquiry officer by his order dated 19 November, 2013 found the charge of unauthorised absence from duty to be proved.
The General Manager, Mugma Area accepted the enquiry officer’s report and by an order dated 11/13 December, 2013 terminated the service of the petitioner.
(37) I have carefully gone through the enquiry report in question.
It is not in dispute that the petitioner was absent from duty for about 14 months without obtaining prior permission and without any intimation to the Management during the entire period of such absence.
Nothing has been produced by the petitioner to show that he had intimated the management about his contemporaneous physical condition during the entire period of his absence.
The only explanation sought to be given by the petitioner is that all throughout the period of his absence from work he was suffering from serious ailment i.e.‘motor accident and fractures in his entire body’ which justified his absence from work.
The enquiry officer duly considered the treatment papers available with him and came to a finding that although the petitioner was undergoing treatment at Dhanbad between 1 February, 2003 to 5 April, 2003 he did not inform the local management about his whereabouts and did not care to inform the management about the reason of his continuous absence from duty owing to his sickness.
The enquiry officer held that the factum of unauthorised absence has been proved.
(38) It does not appear from the records of the case that the petitioner was continuously indisposed for a period of 14 months.
It is difficult to accept his contention that he was not in a physical state to send even one intimation to the management regarding his physical indisposition and medical treatment.
The conduct and attitude of the petitioner appears to have been extremely casual and cavalier.
In the judgment and order dated 20 April, 2016 delivered on WP No.800 of 2014 (Some Majhi-vs.-Coal India Ltd.) this court emphasised that an employee must take his duty seriously.
He cannot take his employment for granted.
He must follow the rules and regulations of the employer company.
He must conduct himself in a disciplined manner.
He must perform his duties with responsibility.
An employee should adhere to discipline not only for personal excellence but also for the collective good of the organization which he serves.
An employee/workman who absents himself from duty without obtaining leave for 14 months and does not think it necessary to send even one intimation to the employer company during such period of absence, deserves no sympathy.
Any kind of leniency or indulgence shown to such employee would send a wrong signal to the other employees of the organization which will be detrimental to the interest of all concerned.
(39) I do not find any glaring infirmity in the enquiry report in question.
In preparing the enquiry report, the enquiry officer duly observed the principles of natural justice.
He came to a finding based on the evidence before him.
This court will not weigh the sufficiency of such evidence.
The finding of facts arrived at by a Tribunal in a domestic enquiry is generally not to be interfered with by the Writ Court.
(40) The petitioner contended that the level of his attendance in the year 2000 and 2001 was irrelevant in deciding whether or not the charge brought against him was proved.
The enquiry officer noted in his report that the petitioner ‘was having very low attendance in previous occasions i.e.76 days in the year 2000, 59 days in the year 2001.’ The petitioner contended that consideration of such irrelevant factor vitiated the enquiry report.
I agree with the petitioner’s contention to the effect that his low attendance in the years 2000 and 2001 were not relevant for the purpose of the enquiry proceeding in question.
Further, the charge against the petitioner was not low attendance in the year 2000 and 2001.
However, in my opinion, consideration of any and every irrelevant factor does not make an order bad.
Only if the irrelevant factor forms the basis of the decision/order and only if it appears that the order cannot be sustained if the irrelevant factor is not considered, can it be said that the order is vitiated as being based on irrelevant considerations.
However, if the finding can be sustained shorn of the irrelevant factor, it cannot be said that the finding is rendered bad and untenable only because an additional fact was considered by the authority concerned which was not germane for the purpose of the proceeding before it.
In the instant case, the charge of unauthorised absence from duty for 14 months has been proved on the basis of the evidence on record.
The finding of unauthorised absence is not based on the petitioner’s low rate of attendance in the years 2000 and 2001.
Hence, the petitioner’s objection in this regard cannot be accepted.
(41) Coming to the question of whether or not the punishment of dismissal from service was excessive and disproportionate to the charge brought against the petitioner, it is trite law that the Writ Court normally does not interfere with the quantum or degree of punishment imposed by a disciplinary authority on a delinquent employee.
Only if the court finds that the punishment is so severely disproportionate to the charge levelled against the employee that it shocks the conscience of the court, will the court intervene.
As per clause 26.29 of the Certified Standing Order which is in force in respect of M/S.Eastern Coalfields Ltd., Sanctoria, Burdwan, West Bengal, absence from duty beyond ten days without sanctioned leave or sufficient cause is a misconduct.
In the instant case, the petitioner was absent from duty for a long period of 14 months.
In the case of Chennai Metropolitan Water Supply and Sewerage Board & Ors.-vs.-T.T.Murali Babu, (2014) 4 SCC108 the concerned employee was absent from duty for about 19 months without having obtained leave or giving any intimation to the management.
The Hon’ble Supreme Court held that this indicated totally indisciplined attitude on his part and the punishment of dismissal imposed on him was not shockingly disproportionate and doctrine of proportionality did not get even remotely attracted to such a case.
I am of the view that in the instant case the punishment imposed on the petitioner is not so shockingly disproportionate to the charge levelled against him so as to warrant interference of this court.
It would have been an entirely different matter if the petitioner had sent intimation to the management as regards his inability to attend work.
He could have done it even through a family member or a friend.
It is impossible to accept that it was not possible for the petitioner to send a single intimation to his employer or make an application for leave during his entire period of absence for about 14 months.
Such recalcitrant employees do not deserve any sympathy.
(42) The petitioner’s Ld.
Counsel has cited decisions to the effect that the authority which issued the letter of termination must not be subordinate in rank to the appointing authority.
I have discussed those decisions above.
However, the dismissal order has not been challenged on the ground of lack of power or authority of the person issuing such order.
No material has been placed by the petitioner to show that the General Manager, Mugma Area, Eastern Coalfields LTD.was not authorised to issue the dismissal order.
(43) Before concluding, I should advert to the decisions relied upon on behalf of the petitioner.
In Madhusudan Chowdhury-vs.-State of West Bengal (supra).the petitioner who was attached to the Jalapahar T.O.P under the Superintendent of Police, Darjeeling was absent from duty for about three months due to sickness without prior permission from the competent authority.
A departmental proceeding was initiated against him and he was found guilty.
He was dismissed from service.
His challenge before the West Bengal Administrative Tribunal failed.
He challenged the Tribunal’s order by filing writ petition before this court.
The Division Bench held that the alleged misconduct of remaining absent without prior permission does not amount to an offence connoting moral turpitude and under the Police Regulations of Bengal and in particular Regulations 856 and 857, no major punishment like dismissal from service can be imposed for such act of indiscipline which did not constitute a major offence.
Accordingly he was directed to be reinstated with 50 per cent back wages and continuity of service.
In my opinion, that case has no manner of application to the facts of the instant case since in that case the decision turned on interpretation of Regulations 856 and 957 of the Police Regulations of Bengal.
(44) In Maitrayee Ghosh-vs.-Kolkata Port Trust (supra).the writ petitioner was working as a medical officer under the Haldia Dock Complex.
She had taken leave in August - September, 2001 for illness in her family but even after the sanctioned leave period expired, she did not join her duties.
However, she was in correspondence with the authorities for extension of leave.
In January, 2002 she was issued charge-sheet imputing misconduct on her part.
In the enquiry proceeding she was found guilty of unauthorised absence and the disciplinary authority imposed penalty of removal from service.
Her departmental appeal was dismissed and so was her writ petition before the Ld.
Single Judge.
On appeal the Hon’ble Division Bench quashed the punishment of removal but directed the authorities to pass appropriate order of punishment without removal from service and the court also declined to pass any order for payment of back wages.
In couRs.of the judgment, the Hon’ble Division Bench observed that unauthorised absenteeism from duty without any prior intimation or prior permission amounts to gross misconduct.
However, since the employee was in correspondence with the Management for extension of leave, it could not be said that she was absent without intimation to the authorities.
As such the punishment of removal from service was shockingly disproportionate.
The court further held that the order passed by the Appellate Authority was an unreasoned order passed without applying its mind to the findings of the enquiring authority and the decision of the disciplinary authority.
(45) In the case of Collector Singh-vs.-L.M.L.Ltd., Kanpur (supra).the Hon’ble Apex Court set aside the order of dismissal from service holding that the same was haRs.and disproportionate to the alleged misconduct of throwing jute/cotton balls on a co-employee.
(46) In Chairman Cum Managing Director, Coal India Ltd.-vs.-Mukul Kumar Choudhuri (supra).the Hon’ble Supreme Court held that where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desire to disobey the order of higher authority or violate any of the company’s rules and regulations but the reason was purely personal and beyond his control, as a matter fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified since no reasonable employer would have imposed the extreme punishment of removal in like circumstances.
The Hon’ble Supreme Court directed reinstatement of the concerned employee but denied him back wages by way of punishment for the proved misconduct of unauthorised absence for six months.
(47) In Pepsu Road Transport Corporation-vs.-Rawel Singh (supra).the Hon’ble Apex Court held that the dismissal of the concerned workman on the ground of absence for few days was grossly disproportionate and excessively high.
The Supreme Court upheld the award of the Labour Court to the extent the same directed reinstatement of the employee but modified the award by denying back wages to the employee.
(48) In Bhagwan Lal Arya-vs.-Commissioner of Police, Delhi (supra).the Hon’ble Supreme Court interpreted Rules 8(a) and 10 of the Delhi Police (Punishment and Appeal) Rules, 1980 and observed that the said two Rules provide that the penalty of removal from service can be imposed only in cases of grave misconduct and continued misconduct indicating incorrigibility and complete unfitness for police service.
However, the absence of the appellant for two months and eight days on medical ground with application for leave could not be termed as grave misconduct so as to render him unfit for police service and hence, the punishment was totally disproportionate to the proved misconduct of the appellant.
The order of dismissal was accordingly set aside.
(49) In State of U.P.-vs.-Saroj Kumar Sinha (supra).the Hon’ble Supreme Court was considering the UP Government Servant (Discipline and Appeal) Rules, 1999.
The Hon’ble Apex Court found that there were several irregularities in the disciplinary proceedings.
The chargesheeted employee was denied access to documents which formed the basis of the charge-sheet.
He was also not heard as the enquiry officer failed to fix the date of enquiry.
Not a single witness was examined before the enquiry officer.
The Hon’ble Apex Court held that the enquiry was vitiated being violative of the principles of natural justice and fair play.
(50) In Nand Kishore Prasad-vs.-The State of Bihar (supra).the Hon’ble Apex Court held that disciplinary proceedings before a domestic Tribunal are of a quasi-judicial character; therefore, the minimum requirement of the rule of natural justice is that the Tribunal should arrive at its conclusion on the basis of some evidence, i.e., evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him.
Suspicion cannot be allowed to take the place of proof even in domestic enquiries.
The Hon’ble Supreme Court referred to its earlier decision in the case of Union of India-vs.-H.C.Goel, AIR1964SC364 wherein it was observed that the principle that in punishing the guilty, scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under statutory Rules.
The Supreme Court went on to hold that if the disciplinary enquiry has been conducted fairly without bias or predilection, in accordance with the relevant disciplinary rules and the Constitutional provisions, the order passed by such authority cannot be interfered with in proceedings under Art.
226 of the Constitution of India merely on the ground that it was based on evidence which would be insufficient for conviction of the delinquent on the same charge at a criminal trial.
(51) In Nick (India) Tools-vs.-Ram Surat (supra).the Hon’ble Apex Court held, inter alia, that it is not an inevitable conclusion that every time a reinstatement is ordered, full back wages was the only consequence.
However, even in cases where full back wages are legally due but the Labour Court has on an erroneous ground reduced such back wages, the superior courts are not precluded from awarding full back wages.
(52) In Pradip Kumar Hazra-vs.-The Managing Director of DDST (supra).a Ld.
Single Judge of this court held, inter alia, that the disciplinary authority cannot rely on the past conduct of the delinquent employee while considering the charges against him.
(53) In Government of A.P.-vs.-N.
Ramanaiah (supra).the Hon’ble Apex Court held that Art.
311(1) of the Constitution of India does not command that the dismissal of an employee must be by the very same authority who made the appointment or by its direct superior.
The dismissal can be either by the appointing authority or by any other authority to which the appointing authority is subordinate.
The dismissal of civil servants must comply with the procedure laid down in Art.”
311. (54) In Mahinder Dutt Sharma-vs.-Union of India (supra).the Hon’ble Apex Court was considering Rule 41(1).proviso of the Central Civil Services (Pension) Rules, 1972 which provided for compassionate allowance to dismissed/removed employees.
In that connection, the Hon’ble Supreme Court observed that absenteeism was not an act of moral turpitude or of dishonesty or an act designed to make illegitimate gains from the employer or an act directed to harm a third party.
Hence, the concerned employee was entitled to be considered in a compassionate manner.
(55) In Steel Authority of India Ltd.-vs.-Debasish Biswas, (supra) a Division Bench of this Court held that since a charge-sheet contains accusation of misconduct, adequate care should be taken to ensure that the charge-sheet mentions all the essential ingredients of a particular misconduct.
The charge-sheet should contain all the relevant facts which constitute a particular misconduct.
The charges mentioned in the charge-sheet should not only be specific but the same should also be complete in all essential constituents.
Whether a charge-sheet in a given case is vague or not will depend on the facts and circumstances of each case.
In the event, the charge-sheet does not spell out the part played by the concerned employee with appropriate details and does not disclose material particulaRs.then the charges mentioned in the charge-sheet are bound to be declared as vague.
In the facts of that case, the Court analysed Rule 25(3) of the SAIL Conduct, Discipline and Appeal Rules, 1977 which casts an obligation on the disciplinary authority to frame definite charges on the basis of the imputations of misconduct or misbehaviour against the concerned employee, and held that the charge-sheet and also the statement of allegations on the basis of which charges were framed were vague and was liable to be quashed on the ground of violation of the principles of natural justice.
(56) In Dewan Singh-vs.-State of Haryana, (supra) in the facts of that case, the Hon’ble Apex Court found that apart from giving show-cause notice, no other communication was made to the concerned employee except the order of dismissal.
The court held that this was in violation of Section 124(2) of the Punjab Panchayat Samities and Zilla Parishads Act, 1961.
The Court held that the reasonable opportunity envisaged under Section 124(2) of the said Act had not been afforded to the appellant employee for making an effective representation to establish his innocence and the said statutory provision which was of a mandatory character in a departmental enquiry had been violated thereby vitiating the order of dismissal.
(57) In Kumaon Mandal Vikas Nigam Ltd.-vs.-Girja Shankar Pant, (supra) the Hon’ble Apex Court held that it is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence of this country.
The judicial process itself embraces a fair and reasonable opportunity to defend.
While it is true that in a departmental proceeding the disciplinary authority is the departmental judge of facts and the High Court may not interfere with the factual findings, but the availability of judicial review in case of departmental proceedings cannot be doubted.
Judicial review has its application to its fullest extent in departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse.
In the facts of that case, the Hon’ble Apex Court found that material documents were not supplied to the charge-sheeted employee in spite of requests.
The Hon’ble Court also found that the order of dismissal suffered from bias of the Managing Director who had framed the charges and had appointed an enquiry officer who was directly under his supervision.
Accordingly, the order of dismissal was set aside.
(58) The aforesaid decisions discussed above are on the points of proportionality of the punishment imposed, violation of the principles of natural justice in conducting domestic enquiry and vagueness in the charge-sheet issued to the delinquent employee.
In the facts of the instant case, the charge-sheet against the petitioner was specific and clear and not vague or ambiguous in any manner.
The enquiry proceeding was held observing the principles of natural justice.
The petitioner fully participated in the proceeding.
The principle of proportionality is also not attracted in the facts of this case as I have held above.
I have no disagreement with the principles of law laid down in the above decisions but one must bear in mind that each decision must be read and understood in the factual context of that case.
A judgment is an authority for what it decides and it cannot be applied blindly to any and every factual matrix.
In my considered opinion, the decisions cited on behalf of the petitioner cannot be made applicable to the facts of the instant case and do not advance the petitioner’s case in any manner.
(59) In view of the aforesaid, this writ application fails and is dismissed.
There will, however, be no order as to costs.
(60) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)