Mukherji, Actg. C J.
1. The present appeal is directed against the judgment and order dated June 30, 1986 passed by a learned Single Judge of this Court in S.B. Civil Writ Petition No. 161/85, in a writ petition under Article 226 of the Constitution of India.
The writ petitioner appellant filed a writ application impugning the order of removal from service, being Order No. 1306 dated May 5, 1984, passed by the Works Manager, Central Workshop (Leyland) of the Rajasthan State Road Transport Corporation (in short 'the Corporation'), in course of a disciplinary proceeding, and the appellate order dated October 19, 1984 passed by the General Manager (Production) of the Corporation, rejecting his appeal. It was prayed inter alia by the writ petitioner appellant that he be declared to be on duty for all purposes with all consequential benefits, pay, allowances etc., and he be allowed interest @ 12% per annum on the arrears of salary and a direction be given so as to reinstate him in service.
2. The writ petitioner appellant was employed as a Mechanic Grade-I in the Corporation at Jaipur under the Works Manager, Central Workshop (Leyland). While serving under the Corporation, he was served with a charge-sheet bearing No. 2187 dated August 2, 1983 by the respondent No. 2 the Works Manager, Central Workshop (Leyland). It was alleged in the charge sheet that one Mool Chand Sharma, Head Time Keeper had reported that the writ petitioner appellant was a habitual absentee and he remained absent from duty without permission and without sanction of leave from March 7, 1983 to March 12, 1983, March 13, 1983 to March 19, 1983, March 20, 1983 to March 26, 1983, March 27, 1983 to March 31, 1983 and April 1, 1983 to April 11, 1983. The writ petitioner appellant denied the allegations and contended inter alia that leave from March 5, 1983 to March 12, 1983 was sanctioned to him vide order No. 738 dated March 18, 1983 and that he had sent an information in right time but because of the delay in the postal service, the letter reached late and as such, he could not be held guilty and since he had been continuously on leave since March 5, 1983 he did not absent himself from duty without permission. It was also alleged on his behalf that the allegation of not coming on duty and not falling sick was contrary to facts since he had sent a medical certificate. It was contended on his behalf that he had gone on leave after sanction from March 5, 1983 to March 12, 1983. March 13, 1983 was a Sunday and a holiday. On March 13, 1983, he had fallen ill and suffered from dysentery and fever, with bleeding. He was under treatment of a Government Doctor on March 13, 1983 and he attached a medical prescription slip. Since March 13, 1983 was a holiday, he could not send the information to the Department and hence, he sent a letter under Certificate of Posting on March 14, 1983 as per receipt dated March 14, 1983. When he did not get relief from bleeding and dysentery which was accompanied by fever, he consulted a Government Ayurvedic practitioner who treated him since March 14, 1983. A certificate of Vaidya of the Government Ayurvedic Dispensary was also sent to the respondents. Even when on March 19, 1983, he did not fully recover, he applied for extension of leave vide his application dated March 21, 1983 which was also sent under Certificate of Posting, of which he had receipt dt March 21, 1983. He being in need of more medical treatment, further applied for extension of his leave by an inland letter sent under Certificate of Posting, dated March 30, 1983 and then he further applied for extension of leave on April 6, 1983 by another inland letter. He then reported for duty on April 11, 1983 with a medical certificate for the period from March 14, 1983 to April 9, 1983 and a fitness certificate granted by the doctor. Since April 10, 1983 was a Sunday, he could join duty only on April 11, 1983. It would thus be seen that the leave applications were sent by the petitioner in time and none of them had been rejected by the competent authority as would be evident from the letter dated April 2, 1983 which he received on April 8, 1983. The Works Manager, Central Workshop (Leyland) did not give any intimation to the writ petitioner appellant about the appointment of an Enquiry Officer and about holding an enquiry against him. However, for the first time, he read in the newspaper that some enquiry was going to be held on April 21, 1984. He reached there on April 21, 1984 and on that day, some statement was recorded without due notice to him and enquiry was thus concluded. He was neither given a copy of the statements of the witnesses or even a copy of the enquiry report nor even the names of the witnesses who would be examined on behalf of the administration. That apart, no opportunity of defending himself was given to him. He was not even asked to appoint a defence counsel or a defence helper to conduct the enquiry. It was just a fake enquiry without due opportunity of proper defence. Ultimately, the respondent No. 2 passed an order of removal from service, vide Order No. 1306 dated May 5, 1984. The writ petitioner appellant then filed an appeal before the General Manager(Production) of the Corporation but the same was rejected by him vide order dated October 19, 1984.
3. Contention of the writ petitioner appellant inter-alia had been that the impugned orders were perverse and based on no evidence and that the enquiry was vitiated on the ground inter alia that the respondent No. 2 did not supply to him the names of the witnesses to be examined on behalf of the administration either at the time of giving the charge-sheet or before examination of the witnesses itself in the departmental enquiry. He thus, could not collect necessary material to cross-examine such witnesses effectively and he has thus been deprived of an efficacious opportunity to have a proper defence in the enquiry. That apart, neither the Enquiry Officer nor the Departmental Authority had given him the list and contents of the documents relied upon by the Department and he could not know as to what was the actual case of the management or the administration against him, which had prejudicially affected him in his defence. That apart, the Standing Orders of the Corporation did not authorise the respondent No. 2 to part with the enquiry and entrust it to the Enquiry Officer and the enquiry was thus vitiated having been held by an unauthorised person. Even name of the Enquiry Officer was not intimated to him. The date of enquiry was also not intimated to him, as a result whereof he could not prepare his defence case so as to make out an efficacious defence. He was thus deprived of a reasonable opportunity of defence. He was not even given an opportunity to be represented by a defence counsel or by a defence helper. He was also not granted proper opportunity to adduce evidence in defence. A copy of the complaint sent by Shri Mool Chand Sharma, Head Time Keeper was also not sent to him. He could not even know the contents of the complaint and thus, he was punished in a manner which offended the very principles of natural justice and fair play. The Disciplinary Authority did not give him copies of the statements of the witnesses which were recorded during the purported enquiry. He was not given to understand what testimony of those witnesses were, which were relied upon by the Disciplinary Authority in holding him guilty of the charges. Non-supply of the statements of the witnesses has rendered the enquiry a mockery and the impugned orders were vitiated on account of these lapses on the part of the management, to hold a proper enquiry in accordance with law. The Disciplinary Authority relied upon the report of the Enquiry Officer Shri G.B, Saxena while holding charges against him to be proved but the enquiry report was not furnished to him. That apart, the punishment awarded vide orders dt. May 5, 1984 and October 19, 1984 are arbitrary, illegal and liable to be quashed, inas-muchas he was deprived of a right of proper defence; because of non supply of a copy of the enquiry report he could not even comment upon and explain the adverse findings in the enquiry report so as to have an effective opportunity to file a departmental appeal. It was further alleged that the disciplinary authority, respondent No. 3 has not considered the contents of his appeal and the Appellate order was a cryptic one devoid of any reasons. The Appellate Authority did not indicate as to on what evidence, he agreed with the findings of the respondent No. 2. He could not be held guilty for charge No. 1 in the charge sheet dated August 2, 1983 as it did not amount to misconduct. As regards Charge No. 2, it was admittedly given out in the same that the application for extension of leave was sent on March 14, 1983 but was received on March 17, 1983, which delay was occasioned on account of postal department for which he could not be punished. He further submits that he had been granted leave upto March 12, 1983 and since March 13, 1983 was a Sunday i.e. a Holiday, he could not send information about his illness and he could send information about his illness only on March 14, 1983 as the Post Office remained closed on Sunday at Bandikui. If there was delay of four days in the receipt of his application for leave, the delay could not be attributed to him as a wilful absence on account of which he could be punished. Application for extension of leave was by him, for the period March 20, 1983 to March 26, 1983, on March 21, 1983 as March 20, 1983 was a Sunday, on which date the Post Office was closed and the application having been sent on March 21, 1983 even though it was received in the office on March 23, 1983 after some delay which was on account of the delay caused by Post Office, the writ petitioner appellant could not be held guilty on account of the said charge, No. 3. Charge No. 4 also could not be sustained against him for the simple reason that he sent application for leave on March 30, 1983 and this application was received on April 1, 1983 and delay was occasioned due to the postal authorities. He sent extension application of leave for the period April 1, 1983 to April 10, 1983 on April 6, 1983 under Certificate of Posting. Hence, he never remained absent without information, as regards Charge No. 5. As re-gards Charge No. 6, it was purely hypothetical charge. He had received the notice dt. April 2, 1983 on April 8, 1983 and had applied for leave upto April 10, 1983 and his physician took him to be fit for assuming duties and accordingly, he joined his duties on April 11, 1983 as directed by the notice dated April 2, 1983. In the notice dated April 2, 1983, it was ultimately mentioned that the writ petitioner appellant was to attend the duties within three days of the receipt of notice, failing which he would not be granted any leave and he should be subjected to a departmental enquiry. Since he had received the notice on April 8, 1983 he joined on April 11, 1983, April 10, 1983 being a Sunday and a holiday. After he could thus join the duties in compliance of the notice dated April 2, 1983, of the respondent No. 1 no presumption could be taken against him, to the effect that he was not ill. There was nothing contrary on record to show that he was not ill and as such, he contended that Charge No. 6 also could not be said to have been proved against him. There was no such provision in the Standing Orders for employees to send medical certificate on the very day of their having fallen ill and as such, it could not amount to a misconduct. Under the Rajasthan State Road Transport Corporation Workers and Workshop Employees' Standing Order, 1965 (in short 'the Standing Orders') habitual absence without leave or absence without leave for more than ten dayscould be taken to be a misconduct.
The writ petitioner appellant contended that since none of the charges and allegations did make out a case of his 'habitual absence' without leave or abesence without leave for more than ten days, no enquiry could at all be made against him since it was not an absence without application for leave. The continued absence of the writ petitioner appellant was split into seven segments so as to constitute seven charges against him. Even the Head Time Keeper Mool Chand was not examined. It was contended on behalf of the writ petitioner that the enquiry was conducted with a closed mind since no prima facie case of 'misconduct' could have arisen in the facts arid circumstances of the case. According to the letter received by him, the writ petitioner appellant had to attend office within three days of the recepit of the letter failing which there was a threat to proceed against him in a disciplinary enquiry. He having already complied with the said order and having joined his duties, there could not have been a departmental enquiry against him. As such, it showed clearly a malafide attitude on the part of the management against him. That apart, the competent authority did not cancel the leave which was already granted in his favour nor rejected the leave application with due application of mind and hence, there ought to have been a presumption about the regularisation of his absence and he ought to have been deemed to be on valid leave and as such, no punishment was warranted in law. He further contended that the charge could not be said to have been proved against him for the simple reason that there was no evidence on record to prove that he had been remaining absent habitually.
4. It was further contended on behalf of the writ petitioner appellant that the provisions of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (in short 'the Rules of 1958') were made applicable in respect of employees of the Corporation but still then, none of the provisions of the said Rules of 1958 were made applicable in the facts and circumstances of the present case. The de facto complainant Mool Chand was not examined in the enquiry but the disciplinary Authority did not draw an inference adverse to the management on account of the non production of the said material witness. The charge sheet actually related to one incident i.e. of his continued absence from March 7, 1983 to April 10, 1983. The absence was also due to his continued illness which did not amount to habitual absence without leave or absence without leave for more than ten days without leave application. He had applied for the leave which fact was admitted by the respondents at all stages and that the case against him was not that of absence without leave or leave application. No case of misconduct within the meaning of Standing Order 34(O) of the Standing Orders thus could be made out.
5. The Corporation contested the writ application. Besides denying that no opportunity was granted to the writ petitioner appellant during the course of enquiry before the Enquiry Officer, a case was set up that the writ petitioner appellant was a habitual absentee and he was absent from duty and even before the present disciplinary enquiry, he had been punished once vide order dated December 6, 1982 and one grade increment was stopped for one year with cumulative effect and there was a recorded warning against him. It was further averred by the Corporation that even if the petitioner contended that it was his absence from March 13, 1983 to April 9, 1983 on the ground of his illness on account of dysentery and fever, but he did not furnish any medical certificate along with his reply which would have been before the Enquiry Officer. Taking into consideration his past conduct, the Corporation had every reason to believe that the fact of illness of the writ petitioner appellant was a fake one.
6. It was urged before the learned Single Judge on behalf of the writ petitioner that in the domestic enquiry so held by the Management, the principles of natural justice were not really followed and the order of dismissal based on the domestic enquiry was without jurisdiction and it was not necessary for the writ petitioner to raise an industrial dispute Under Section 2(k) of the Industrial Disputes Act, 1947 (in short 'the Act of 1947'). It was further contended by the writ petitioner appellant that even under the Standing Orders, no case of misconduct was made out and as such, he could not have been removed from service.
7. Learned Single Judge took it for granted that the writ petitioner appellant was a workman within the meaning of Section 2(s) of the Act of 1947 and that the Corporation was an 'industry'. He further took it for granted that the dispute relating to the removal of the writ petitioner appellant from service is an industrial dispute within the meaning of the Act of 1947 and it could be the subject matter of reference to the Industrial Tribunal- a Labour Court, by the State Government. The terms and conditions of the writ petitioner's employment were governed by the Standing Orders and the Standing Orders dealt with leave. Under Standing Order No. 26(3), a worker who desires to obtain leave of absence shall apply to the General Manager or the competent authority appointed in this behalf in writing, stating therein the purpose for which the leave is requested. The period of such leave and also the address where the leave is sought to be enjoyed shall be stated in the application. Under Standing Order No. 26(4), application for leave must in normal cases be made a week before the date, the leave is to commence and applicant-shall not enjoy such leave unless orders are passed by the General Manager or the competent authority appointed in this behalf, on such application in writing. In case of refusal to grant leave, the authority refusing the leave shall state reasons for such refusal and inform the worker. Under Clause (6) of Standing Order 26, an application for leave in continuation to or extension of the leave already being availed of, must in all circumstances as far as possible be made well in time to ensure a reply granting or refusing such extension before the period of original leave expires. In Clause (7) of the Standing Order 26, absence beyond the period of the original leave or extension if not granted, shall render the absentee liable to lose his lien on his appointment unless he returns within eight days of the expiry of the leave and explains to the satisfaction of the General Manager or the competent authority the reasons of his inability to return in time. Standing Order 34 enumerates the acts and omissions which shall be treated as misconduct. Under Clause (O) habitual absence without leave or absence without leave for more than ten days is taken as a misconduct.
8. It was found by the learned Single Judge that the writ petitioner appellant appeared before the Enquiry Officer and he refused to cross- examine Nainu Mal of the Time Keeper's Office, who was examined by the Management on April 21, 1984. The writ petitioner appellant has also given statement as per Annexure R-2 on the same day that he did not want to examine any witness in defence and that the reply filed by him on August 23, 1983 might be treated as his statement.
9. Learned Single Judge thought that had the dispute been referred to the Industrial Tribunal Under Section 10 of the Act of 1947, as an industrial dispute, the Tribunal had to first decide as a preliminary issue whether the domestic enquiry was held in accordance with the Rules conforming to the principles of natural justice. If the Tribunal had decided that the enquiry was not fair and proper and was against the Rules or contrary to the principles of natural justice, the employer could be called upon to prove the misconduct before the Tribunal and the Tribunal had to afford to the employer an opportunity to prove the charges against the workman. Referring to several decisions of the different High Courts in this context, the learned Single Judge held that the writ petition should not be entertained and the workman should be asked to resort to his remedy available Under Section 10 of the Act of 1947. Learned Single Judge was of the view, following the observations of the Supreme Court in Basant Kumar Sarkar v. Eagle Rolling Mills (1964-II-LLJ 105), that the powers conferred under Article 226 of the Constitution of India are very wide but then the proper remedy which was available would be to take recourse to Section 10 of the Act of 1947. Referring to the decision of the Supreme Court in the case of Ram and Shyam Company v.State of Haryana and Ors. reported in 1985 3 SCC 267, the learned Single Judge held that the court has imposed a restraint on its own wisdom as regards the exercise of jurisdiction under Article 226 of the Constitution of India where the party invoking such jurisdiction has an effective and adequate alternative remedy. The rule which requires the exhaustion of alternative remedy is a rule of convenience and discretion, rather than a rule of law, even though it did not oust the jurisdiction of the court. Referring to a Division Bench decision of this Court in Nagaur Central Cooperative Bank Ltd. v. Kesa Ram 1979 RLW 480 where it was observed that making of a reference Under Section 10 of the Act having been within the discretion of the State Government,' the writ petitioner could not claim relief as a matter of right, the learned Single Judge in the present case, relying upon a decision of the Supreme Court in Basant Kumar Sarkar (supra), observed that the present case not being one where the government has refused to make the reference to the Industrial Tribunal, after an industrial dispute having been raised, writ petition under Article 226 of the Constitution of India should not be entertained. Learned Single Judge also referred to the decision of the Supreme Court in State of MP v. Bhai Lal Bhai and Ors. 1964 AIR SC 1006 to hold that the court cannot lose sight of the fact that the special remedy pro-vided under Article 226 is not intended to super sede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. Learned Single Judge observed that before the Industrial Tribunal, in case the workman raised a dispute to the effect that the domestic enquiry was not fair and proper or against the principles of natural justice, it would have an efficacious remedy as the Tribunal had ample powers to decide it, as a pre-liminary issue and in case it decided in favour of the workman, it has to grant an opportunity to the employer to lead evidence so as to prove the charge on which the workman has been removed or discharged from service and the workman is also entitled to lead evidence in rebuttal. All these opportunities not having been available in the framework of writ petition, the court could not come to a conclusion that the domestic enquiry was not fair or proper. It was held by the learned Single Judge that if the writ petition is entertained under Article 226 of the Constitution, it would be denial to the employer of a right to take a defence which is legally open to it in such a case. Such a course would be against the law laid down by the Supreme Court in the case of Bhailal Bhai (Supra). That apart, if ultimately after hearing the writ petition, the High Court came to the conclusion that the charge stood proved, the High Court would not be in a position to exercise its power Under Section 11A of the Act of 1947 under which a power was vested in the Tribunal to reduce the penalty imposed by the employer or to impose a lesser penalty in case the Tribunal came to such a conclusion that the penalty imposed was disproportionate to the charge. Learned Single Judge thus concluded that the dispute between the writ petitioner and the Corporation being an industrial dispute, and which lies within the jurisdiction of the Industrial Tribunal, in his opinion, the nature of the controversy involved could only be properly decided by directing the writ petitioner to resort to his remedy provided under the Act of 1947 and that it would not be proper and fair to entertain the writ application. Accordingly, the learned Single Judge dismissed the writ application.
10. It has been urged by the writ petitioner appellant that the learned Single Judge committed an error in the eye of law in dismissing the writ application; even though he did not wish to invoke his powers provided under the Act of 1947, but he took the shelter of the constitutional forum under Article 226 of the Constitution of India because of the infringement of his fundamental rights conferred under Articles 14 and 16 of the Constitution of India. His contention in-teralia is that his rights conferred and provided under the Standing Orders which came to be framed under the Industrial Employment Stand-ing Orders Act, have been infringed. He has already exhausted his remedy provided under the Standing Orders by filing an appeal before the General Manager (Production) as per Clause 26 of the Standing Orders. He was entitled to get benefit of his rights so provided and conferred under the Standing Orders, It was further submitted by the writ petitioner appellant that it was for the appropriate government either to make the reference or not Under Section 10 of the Act of 1947 and there are no mandatory obligations enacted by the legislature casting an obligation on the appropriate Government to make a reference of the dispute. Reference of an industrial dispute rests upon the discretion of the appropriate Government and in case of an illegal dismissal made by the respondent Corporation, Government has adopted a general practice not to make a reference to the Industrial Court or the Tribunal. Thus, there was no effective alternative remedy available to the writ petitioner appellant in the real sense of the term.
11. It was further averred that the learned Single Judge has relied upon the judgment of the Supreme Court in the case of Basant Kumar Sarkar (supra) where the observations were made only in the context of the case of demand charter and particularly where industrial harmony was likely to be disturbed and it was found by the Supreme Court that more suitable and legal forum was the forum as provided under the Act of 1947 because in such cases, the conciliation proceedings may take place in solving the demands of the workers in the interest of industrial peace and harmony at the cost of some bargaining which could not be so done in other forum. That verdict of the Supreme Court could not be relied upon in the present case where there was an illegal termination resorted to by the Corporation. Learned Single Judge ought to have taken into consideration in the proper perspective the views of the Division Bench of our Court in Nagaur Central Cooperative Bank's case(supra) where it was specifically held that reference Under Section 10 of the Act of 1947 is not really an adequate and alternative remedy. It was also reaffirmed in Phool Chand v. State of Rajasthan 1985 RLR 365 as well as Bhanwar Lal v. R.S.R.T.C. (1985-I-LLJ-III)(Raj) and Radha Kishan V.R.F.C. 1986 RLR 518.
12. Learned counsel for the writ petitioner appellant has cited before us Bhagat Ram v. State of Himachal Pradesh (1983-II-LLJ-I)(SC) wherein it was held that in a petition under Article 226 of the Constitution of India, High Court does not function as a court of appeal over the findings of the disciplinary authority but where the finding is utterly perverse, the High Court can always interfere with the same. In the facts of the said case, the finding of the Enquiry Officer was found to be utterly perverse and dismissal of the writ petition in limine against the penalty of dismissal based on such finding, was found liable to be set aside. It was observed in that case that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution of India. Having been influenced by all these relevant considerations, the Supreme Court came to the opinion that no useful purpose will be served by a fresh enquiry. Supreme Court thought that the justice and fairplay demanded that the Supreme Court itself made an order of minor penalty without being unduly technical and the Supreme Court being fortified in its view by the earlier decision of the Supreme Court in Hindustan Steels Ltd. Rourkela v. A.K. Roy (1970-I-LLJ-228) instead of directing a remand before the Tribunal, so as to eliminate the prolonged dispute, imposed a penalty of withholding of two grade increments of the writ petitioner with future effect and he was directed to be paid 50% of the arrears from the date of termination of his service till the date of rein statement.
13. In Union of India v. Tulsiram Patel (1985-II-LLJ-206), while discussing the question of disciplinary enquiry on coming to know about the conviction of an employee on a criminal charge and imposing penalty thereupon, the Supreme Court observed that the Disciplinary Authority will have to peruse the Judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in T.R. Challappan's case 1975 AIR SC 2216, which has to be done by it exparte and by itself. Once the Disciplinary Authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction of rank, he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The Disciplinary Authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant.Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion of the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government servant, the Court will also strike down the impugned order, as in Shankar Doss v. Union of India (1985-II-LLJ-184), Supreme Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. Supreme Court in Tulsiram Patel (supra) observed that it is not necessary that the court should always order reinstatement but the court can instead substitute a penalty which in its opinion should be just and proper in the facts and circumstances of the case.
14. In Ranjit Thakur v. Union of India & Ors. (1988-I-LLJ- 256) even in respect of a proceeding of summary court martial on account of disobedience of lawful command, where the appellant pleaded guilty, and sentence of R.I. for one year was imposed, in pursuance of which he was removed immediately to civil prison to serve out the sentence and after serving out the sentence, he was dismissed from service with the added disqualification of being declared unfit for any future civil employment, the Supreme Court interfered in the matter and observed that the mere circumstance that the delinquent appellant was, at the relevant point of time, serving sentence to imprisonment and could not therefore be said to be in active service, does not detract from the fact that he was still a person subject to the Army Act. When he refused to eat his food, it formed the subject matter of another summary court martial and he was sentenced as stated above. It was observed by the Supreme Court that the judicial review generally speaking is not directed against a decision but is directed against the decision making process. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial but the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality as part of the concept of judicial review would ensure that even on an aspect which is otherwise within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Here irrationality and perversity are recognised grounds of judicial review.
In the facts of the said case, punishment was so strikingly disproportionate as to call for and justify interference and it was not allowed to remain uncorrected in judicial review and the sentence accordingly was quashed and the appellant was reinstated with all monetary and service benefits.
15. In Prabhu Dayal v. State of Rajasthan and Ors. 1995 Lab. I.C. 94, the writ petitioner, a Constable in Police Department, challenged an order of termination on the ground of wilful absence from duty. That was a case where some of his close relatives died in quick succession and his wife too was suffering from serious ailment and was an indoor patient. He remained under mental shock and was unable to report for duty after expiry of sanctioned leave. It was held that absence could not treated to be wilful absence.The Disciplinary Authority directed his removal from service and it was observed by our Court that the approach of the Disciplinary Authority not only exhibits non application of mind but total lack of humanism. The writ petitioner wasaccordingly directed to be reinstated with penalty of stoppage of two grade increments. It was held in this case that recording of reasons, which should be good and sufficient, is mandatory requirement under the Rules of 1958 where a penalty is imposed and communication of reasons to the delinquent officer is also a necessary requirement without which it would be held that there was a failure of principles of natural justice. Penalty should be by way of a speaking order. It was further held in this case that the petition once admitted for being heard on merits, cannot be dismissed after a period of one and half years on technical ground of there being an alternative remedy.
16. In B.C. Chaturvedi v. Union of India and Ors. (1996-I-LLJ-1231)(SC) it was observed that if the punishment is really shocking to the conscience of the High Court, it can direct the Authority to reconsider the punishment. It may also, in order to shorten litigation, impose an appropriate punishment with cogent reasons in support thereof but that has to be done in exceptional and rare cases. In the minority view expressed by Hansaria J. in this case, it was observed by him that the High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief but it should be done where the punishment or penalty awarded shocks the judicial conscience and it can be invoked also by the High Court under Article 226 of the Constitution of India. The mere fact that there is no provision parallel to Article 142 of the Constitution relating to the High Courts, can be no ground to think that they have not to do complete justice and if moulding of relief would do complete justice between the parties, the same can be ordered and absence of provision like Article 142 is not material while the High Court chooses to exercise such powers.
17. In Rajasthan State Road Transport Corporation and Ors. v. Shri Ram Yadav 1995 (3) WLC Raj. 16, with reference to particular Rule 36 of the Rajasthan State Road Transport Workers and Workshop Employees' Standing Orders, 1965, the essence of Rule has been explained and the principles of service jurisprudence have been elaborated. It has been held in this case that it is the duty of the competent authority to, apply its mind in making selection of penalty for 'good and sufficient reasons' taking into account all vital considerations as to the gravity of charge, its consequences, working conditions of the delinquent and circumstances relating to the commission of misconduct. It was further held that it is the incumbent duty of the Disciplinary Authority to apply its mind to various alternative penalties which are to be imposed on the delinquent and to indicate the requirement by way of giving out good and sufficient reasons for choosing any particular penalty. In this particular perspective, the nature and magnitude of the charge, desirability or undesirability of retaining the delinquent in service and adequacy of penalty lesser than dismissal or removal from service and other aspects constitute vital considerations while imposing penalty. That was a case where the delinquent Conductor, an employee of the Corporation was found guilty of charges of allowing passengers without ticket, not making entry in the way bill and allowing bus to proceed without handing over the way bill to the Driver and there was imposition of penalty of removal from service, coupled with the forfeiture of wages for the entire suspension period. The Division Bench thought it its duty, even though confirming the judgment of the learned Single Judge, that the punishment was not just and proper and in the facts and circumstances of the case, the Division Bench modified the penalty to one of withholding of three annual grade increments with future effect and the workman was ordered to be reinstated in service immediately. The workman was directed to be paid 50% of the back wages.
18. On the other hand, Shri Prem Asopa, learned counsel for the Corporation relied on a judgment of the learned Single Judge in Hariba v. K.S.R.T.C. (1983-II-LLJ-76), (Kant) where it was held that in a petition under Article 226 of the Constitution, the High Court cannot do what the Tribunal is required and competent to do. That was a view which has long been discarded and we do not approve the view of the learned Single Judge of the Karnataka High Court that the writ court has always refused to entertain a writ on the ground of alternative remedy in a case where the workman could make a reference in ultimate analysis and bring the matter for an industrial adjudication.
Shri. Asopa, learned counsel for the respondent Corporation also drew our attention to the decision in State of M.P. v. Bhailal Bhai (supra) with regard to the limited powers of the High Court in granting consequential relief and as to how the discretionary power of the High Court vested under Article 226 of the Constitution has to be exercised. It is indeed true that the power to give relief under Article 226 of the Constitution of India is a discretionary power but then in view of the various Supreme Court pronouncements, as referred to earlier, we do not think that we should refrain ourselves from exercising that discretionary power, as urged by Shri Prem Asopa, learned counsel for the respondents. As has been correctly stated in the said decision itself, it is not easy nor is it desirable to lay down any rule for universal application. We cannot persuade ourselves to, agree that it would always be a sound use of discretion to leave the party to seek his remedy by the alternative mode of action by way of an alternative remedy where it is so available. That apart, we do not consider that an industrial adjudication in the facts and circumstances of the case was really an effective alternative remedy, as has been held by several decisions of this Court earlier.
19. Shri Asopa, learned counsel for the respondents relied upon an earlier judgment of the Supreme Court in State of Orrisa v. Bidhya Bhushan reported in (1963-I-LLJ-239) where it was held inter alia that the Court, in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. It was held in this case that the reasons which induced the punishing authority, if there has been an enquiry consistent with the prescribed Rules, are not justifiable nor is penalty open to review by the Court. If an order of dismissal may be supported by any finding as to substantial misdemeanour for which punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the Authority in dismissing the public servant. It was further observed in this decision that the Court has no jurisdiction if the findings of the Enquiry Officer or the Tribunal prima facie make out a case of misdemeanour, to direct the Authority to reconsider that order because in respect of some of the findings but not all, it appears that there had been violation of the rules of natural justice. It was an extreme case and at a point. Shri Asopa, drew our pointed attention to the powers of the Supreme Court under Article 142 of the Constitution, which were unlimited in nature, to do complete justice and he contended inter alia that the High Court under Article 226 and/or Article 227 of the Constitution do not have that unlimited powers to interfere with the findings either of a domestic enquiry or even with the findings of an Industrial Tribunal or a Labour Court.
20. By citing the decision in Anil Kumar Neotia and Ors. v. Union of India and Ors. reported in AIR 1988 SC 1353, Shri Asopa contended that the decisions of the Supreme Court are of binding nature under Article 141 and the plea that certain points had not been urged, cannot be raised.
He contended that under Clause (1) of Article 142 of the Constitution, the Supreme Court may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it and any decree so passed or orders so made shall be enforced throughout the territory of India. He cited Dr. (Mrs) Roshan Sam Joyce v. B.R. Cotton Mills Ltd., and Ors. reported in AIR 1990 SC 1881 wherein the Supreme Court ordered that by reason of any interim order obtained in the suit filed by the Chairman of a Company as a sub tenant, the landlord can no longer be deprived of the possession of the said premises pursuant to the decree for eviction obtained by him.
21. He also cited a decision in Manganese ore (India) Ltd. v. Chandi Lal Sana and Ors. AIR 1991 SC 520 to show as to what extent the far reaching powers under Article 142 of the Constitution may be, notwithstanding the order of the Labour Court, which has become final, in directing the appellant Company to refund the deductions from the wages of the workmen who were before the Labour Court and to all other workmen similarly situate, with 12% interest.
He also cited Abid Asghar v. State of Bihar (1994-I-LLJ-879) where the Supreme Court decided regarding the question of weightage to be attached to viva voce where selection is to be made on the basis of interview only and held that there are no hard and fast rules regarding the pre-cise weightage to be given to viva voce test as against written examination and the weightage must vary according to the requirements of service. It was a recruitment process where 50% marks were allotted for viva voce and 50% marks were alloted for academic performance and appointments were made by the Public Service Commission. The selection process was ultimately upheld.
22. In Mohammed Anis v. Union of India and Ors. 3994 Supp (1) SCC 145 there was another instance where the Supreme Court in order to do complete justice decided upon the question where, even though it was referred to a larger Bench, where the Supreme Court thought it justified enough to exercise its powers under Article 142(1) of the Constitution. That was a case pertaining to the issue whether the court could order C.B.I, to investigate a cognisable offence committed within a State, without consent of the State Government or without a notification or an order having been issued in that behalf as required by the Delhi Special Police Estab-lishment Act. It was observed in this case that it would not hinder the Supreme Court to order investigation by the C.B.I, into the 'offence committed within a State, in public interest in order' to do complete justice even though none of the criterion was satisfied, about the consent of the State or the notification or any order being issued in this regard, under the Delhi Special Police Establishment Act.
23. In Pt. Chet Ram Vashist v. Municipal Corporation of Delhi 1995 1 SCC 47, in order to do complete justice. Supreme Court under Article 142, held that even though thejudgment and decree of the High Court was liable to be set aside, but having regard to the facts and circumstances of the case, instead of adopting that course, separate orders were passed by the Supreme Court so as to do complete justice by altering the order passed by the courts below.
We do not doubt the proposition that in any case where the Supreme Court deems it just and proper it can exercise its unlimited power under Article 142 to do complete justice. That does not mean and imply that it should be only so done by the Supreme Court and that it shall be the exclusive preserve of the Supreme Court only, as has been so espoused by Shri Asopa.
24. Shri Asopa, then sought to draw a distinction between Article 141 and Article 142 of the Constitution by referring to the decision in J.&K. Public Service Commission v. Dr. Narin-der Mohan and Ors. (1994-I-LLJ-780) where the Supreme Court directed under Article 142 to regularise ad hoc appointments in the peculiar facts and circumstances of the case which, it was made clear, should not be taken to be a ratio to place reliance for other matters for the purpose of relaxing the Recruitment Rules. Even though regularisation in respect of ad hoc appointees was directed by the Supreme Court under Article 142 in the peculiar facts and circumstances of the case, it was made clear that it could not be said that it was laid down as a guideline that in every category of ad hoc appointment, if the ad hoc appointee continues for a long period, the rules of recruitment should be relaxed and the appointment be regularised.
25. In Syndicate Bank and another. v. K. Umesh Nayak (1994-II-LLJ- 836) (SC) it was held, where strike was resorted to by bank employees during conciliation proceedings, despite bank's circular for deduction of wages, on the bank's failure to implement immediately the settlement arrived at between the parties, conferring additional benefits to the employees, on the ground that the bank had to seek government approval, where the High Court recorded findings on legality and justifiability of strike and on that basis, decided the matter in favour of the employees, it was held by the Supreme Court that the High Court erred in law since the situation was not such that the dispute could not brook delay and await resolution by legal mechanism. However, in exercise of power under Article 142, the dispute regarding deduction of wages was referred for adjudication to the appropriate authority. Distinction between the powers of the High Court under Article 226 and that of the Supreme Court under Article 142 was sought to be delineated in this case. It was made clear that what the High Court could not do, the Supreme Court could do for ends of justice. This proposition is also not disputed inasmuch as there are certain distinctions made as regards the exercise of power both under Article 226 as well as Article 142 by the respective courts.
26. Shri Asopa highlighted a decision in Union of India v. Karnail Singh 1995 2 SCC 728, to contend that even the discretionary power of the Supreme Court should be exercised with great care and circumspection and when the Court is settling the law in exercise of its discretion, such law should be clear and be made operational in stead of being kept vague so that it can become a binding precedent in similar cases, to arise in future.
Shri Asopa further contended that there was no clear guideline propounded by the Supreme Court since in more than one decision, even where the Supreme Court considered the punishment to be disproportionate, it did not exercise such powers itself but left the matter to the discretion of the Disciplinary Authority.
27. Shri Asopa, learned counsel for respondent Corporation obviously contended before us that the Supreme Court expressed a different view in State of U.P. and Ors. v. Nand Kishore Shukla and Anr. reported in (1996-II-LLJ-672). It was held in this case that the Court is not to function as a court of appeal to go into the question of imposition of the punishment and it is for the Disciplinary Authority to consider what would be the nature of the punishment to be imposed on a government servant based upon the proved misconduct against the government servant. Its proportionality also cannot be gone into by the court. The only question to be determined is as to whether the Disciplinary Authority could have passed such an order. It is settled law that even if one of the charges is held proved and sufficient for imposition of penalty by the Disciplinary Authority or by the Appellate Authority, the Court would be loath to interfere with that part of the order. The order of removal from service does not cast any stigma on the delinquent officer to disable him to seek any appointment elsewhere. It was held in this case that under these circumstances, the High Court was wholly wrong in setting aside the order. Taking a clue from this case, Shri Asopa argued that what the Supreme Court could do in an appropriate case to set aside an order to punishment on the ground of its disproportionality on account of it being shocking to conscience, the High Court should not do and that ordinarily, the constitutional writ court should not exercise its discretion in setting aside an award of punishment but it should better be left for decision to the Disciplinary Authority or the appropriate authority concerned.
28. Shri Asopa further contended before us that in the light of the Supreme Court decisions, it is clear enough that under Article 142 of the Constitution of India, Supreme Court could have exercised wide powers in interfering with the sentence but then, it would not be apposite or proper for a High Court to exercise such powers under Article 226 of the Constitution of India. We would be constrained to hold that in view of the observations made in B. C. Chaturvedi 's case (supra), the High Court is left with two choices-it can direct the authority concerned to reconsider punishment, or in the alternative, it may itself, in order to shorten the litigation, impose appropriate punishment with cogent reasons in support thereof. We hold in the facts and circumstances of the case that with the passage of more than 13 years, it would not be proper for us to relegate the matter again to the Disciplinary Authority but we should exercise the discretion ourselves and pass an appropriate order in accordance with law which can strike the balance between the industrial discipline and proper dispensation of justice.
We have given our anxious consideration to the matter.
29. We are of the considered view that a reference Under Section 10 of the Act of 1947 by the State Govt. after a long lapse of 12 years, would not really serve as an alternative remedy.
30. We need not go into the question as to whether or not there was a full fledged domestic enquiry worth the name or there was a sham enquiry violating the principles of natural justice and fair play but it is manifest enough from the facts and circumstances of the case that it was a single act of continued absence on the part of the writ petitioner where he, from time and time, went on writing different letters to his employer praying for leave and/or extension thereof and the factum of receipt of such letters which came one after the other, by way of a series of corre-spondence, was never denied by the management. Even though, technically, it could be construed to be a misconduct within the frame work of the Standing Orders, we are of the considered view that the punishment of removal from service, though taken in the background of a formal disciplinary proceeding against the writ petitioner, is really shockingly disproportionate.
31. We think that there not having been aproper application of mind by the Disciplinary Authority as regards the choice of penalty and the penalty having appeared to us to be shocking to conscience, it was a fit case where the punishment was liable to be struck down. Instead of remitting the matter back to the Disciplinary Authority, we think it wise to take up on ourselves the task of imposing an appropriate penalty in accordance with law and we think penalty of stoppage of annual grade increments for three years with cumulative effect and reinstatement of appellant into service without any back wages, would meet the ends of justice. We would direct reinstatement of the writ petitioner appellant with immediate effect, within a fortnight hereof.
In the result, this appeal is allowed, as indicated above and the judgment of the learned Single Judge is set aside. There will be no order as to costs.