Judgment:
ORDER
1. This special appeal arises out of an order passed by the learned Single Judge dismissing the appellant's writ petition and upholding the order of dismissal from service.
2. The appellant was employed as a driver in the respondent factory declared as relief undertaking under the provisions of Rajasthan Relief Undertaking (Special Provision) Act, 1961.
3. He was residing in the Company accommodation within its premises. He was on weekly holiday on September 11, 1983. On account of some emergent work, he was called at about 9.00 a.m. for duty. He told the management that he would go for duty only in case he was paid overtime at double the rate of wages.
4. The Company informed him that on account of its financial constraints no such overtime wages could be paid, but he would be given a weekly holiday on any other working day. This was not accepted by him. He disobeyed the order of the authorities and refused to go on duty.
5. Treating this act of the appellant as a misconduct a charge-sheet was served. He submitted his reply. But, he did not participate in the proceedings. It proceeded exparte. The Enquiry Officer submitted his report and found him guilty, resulting in passing of the dismissal order by the Divisional Manager of the Company on January 17/19, 1984.
6. The said order was challenged in the writ petition. It was dismissed. But, the court by taking a lenient view of the matter awarded him Rs. 10,000 as compensation to mitigate the hardship caused to him on account of dismissal from service. This order did not satisfy him. So, this special appeal has been filed.
7. In the writ petition, the prayer made was for quashing of the dismissal order and for his re-instatement.
Admittedly, he has retired now from service after attaining the age of superannuation. The relief for reinstatement cannot be granted even if, the appeal succeeds.
8. The learned counsel appearing on behalf of the appellant contended that the misconduct has not been established so the order is bad. In our opinion, it is misconceived submission inasmuch as the report of the enquiry officer shows that the charges have been proved.
9. The next contention raised was that mentioning of the word 'dismissal' in the charge-sheet amounts to prejudging the dismissal. We find no merit in the submission.
10. The learned Single Judge while considering this aspect of the matter has held that merely because the word 'dismissal' was mentioned in the charge-sheet, it cannot be said that it has influenced the mind of the authority. The order has been passed independently on the basis of the findings of the enquiry officer. Had there been no material on record for establishing the guilt, the submission of the learned counsel could have been appreciated. In our opinion also the punishing authority had in no way been influenced by the use of word 'dismissal' in the charge-sheet.
11. The next contention raised was that he has been deprived of the opportunity to defend himself. In our view, it is not open to him to raise this objection in appeal inasmuch as full opportunity was given to him but he himself did not participate in the enquiry proceedings which went exparte
12. The submission that the appellant has not been allowed to engage a counsel to defend his case is also without .merit. It has been stated that the person who represented the Company was a legally trained person. The appellant who did not have any legal knowledge was refused to engage a counsel.
13. In reply, it has been stated that Shri P.M. Bhargava who was appearing on behalf of the Company was not a legally trained person. He was a retired Government servant. He was not a lawyer. He had no legal training. Shri Madhukar Sharma who represented the management in the domestic enquiry had only two years standing. Under no stretch of imagination he could be said to be a legally trained person.
14. On the contrary, Shri Salil Ram, who represented the appellant was an experienced union leader having twenty years of experience. He was extremely well-versed with the legal proceedings. We are satisfied mat no prejudice has been caused to the appellant while rejecting this prayer for engaging a counsel. On this point, a reference was made to the decision reported in The Board of Trustees, Port of Bombay v. Dilip Kumar(1983-I-LLJ-l)(SC)but the law laid down in that case will be of no assistance to the facts of the present case inasmuch as the appellant had the assistance of a highly trained union leader.
15. The learned counsel contended that the findings of the learned Single Judge are extremely perverse as they are based on no evidence. In support of his contention he has relied upon the judgment of the Supreme Court reported in Bhagat Ram v. State of H.P. (1983-II-LLJ-1). In that case the Supreme Court has held only this much mat the High Court, in case it is satisfied that the order was perverse, can interfere with the matter under Article 226 of the Constitution. Since we are satisfied that the impugned order does not suffer from any perversity, so there is no occasion for us to interfere with the same.
16. Much emphasis has been laid by the learned counsel for the appellant on the point that his past service record was considered without affording him any opportunity.
17. To us it appears that the record was examined in order to enable the authority to take a lenient view in the matter as he had put in about twenty seven years of service. The purpose of examining the same was not to inflict punishment on him. We find no merit in the submission on this point top. No illegality has been committed in examining the record.
18. Next submission was that the punishment inflicted was disproportionate to the misconduct. But in our view it is not so.
19. Since the appellant has refused to drive the vehicle on September 11, 1983 and was demanding the over time payment double the rate of wages, it amounted to insubordination and indiscipline on his part which is a serious matter. In support of his contention. Shir V.L. Mathur has placed reliance on the judgment reported in Hind C.& E. Company v. Workmen (1965-I-LLJ-462). But the Supreme Court has not given any guideline stating that what punishment should be awarded for which misconduct. It depends on the facts of each and every case. On the set of facts the same misconduct may not be serious but for others, it can be. In our opinion, the misconduct established was of a serious nature and the order of dismissal was not disproportionate to the misconduct.
20. In the last, it was submitted that looking to the facts of the case the order of the learned Single Judge awarding of Rs. 10,000 was wholly insufficient. In our opinion, the learned Single Judge has taken an extremely lenient view and we are not persuaded to hold otherwise.
No other point survives for consideration.
The appeal is hereby dismissed without any order as to costs.