Karnataka High Court
Sri K Eshappa S/O K Tipanna vs The General Manager on 19 February, 2024
Author: S G Pandit
Bench: S G Pandit
-1- W.P. NO.104032/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19th DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
WRIT PETITION NO.104032 OF 2022 (L-RES)
BETWEEN:
KM
SOMASHEKAR
SR. K.ESHAPPA, S/O K.TIPANNA,
Digitally signed
by K M
AGED ABOUT 55 YEARS,
SOMASHEKAR
Date: 2024.02.23
H.NO:767, NB, NORTH BLOCK,
14:41:29 +0530
NMDC COLONY, DONIMALAI,
TQ: SANDUR, DIST: BALLARI-583221.
...PETITIONER
(BY SRI. RAVI HEGDE & SRI. VINAYKUMAR BHAT ADVOCATES)
AND:
THE GENERAL MANAGER,
M/S NMDC LTD.,
DONIMALAI TOWNSHIP,
TQ: SANDUR, DIST: BALLARI-583221.
...RESPONDENT
(BY *SRI. VIJAY MALALI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO, ISSUE A WRIT OR
ORDER QUASHING THE AWARD PASSED BY THE PRESIDING OFFICER
OF THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, BENGALURU DATED 19.01.2021, IN CR.03/2013, VIDE
ANNEXURE-j AND CONSEQUENT UPON QUASHING THE AFORESAID
AWARD ISSUE WRIT OF MANDAMUS DIRECTING THE ESPODNENT TO
REINSTATE THE PETITIONER INTO SERVICE WITH ALL BENEFITS.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON
15.02.2024 COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
DAY, S G PANDIT, J., MADE THE FOLLOWING:
*Corrected vide Chamber Order
dated 23.02.2024.
Sd/-
JUDGE
-2- W.P. NO.104032/2022
ORDER
This writ petition under Article 226 of the Constitution of India is directed against the order dated 19.01.2021 in CR.03/2013 passed by the Central Government Industrial Tribunal-cum-Labour Court, Bengaluru (for short, 'the CGIT') and to set aside the above said award, and consequently to issue a Writ of Mandamus directing the respondent to reinstate the petitioner into service with all benefits.
2. Brief facts of the case are that, the petitioner was working as Class-IV employee in the respondent- company. On the allegation of misconduct, misbehaviour and using filthy language against his superior official, he was issued with a charge memo on 15.03.2008. After enquiry, by order dated 10.02.2009, respondent-company removed the petitioner from service. Against the order of removal, the petitioner filed statutory appeal which was dismissed by order dated 14.05.2009. On the same allegation of using filthy language against superior official, a criminal case in C.C. No.666/2008 was registered against -3- W.P. NO.104032/2022 the petitioner herein and another employee, and in the said criminal case, the petitioner was acquitted on 30.07.2011. Thereafter, the petitioner initiated Conciliation proceedings before the Conciliation Officer and the Conciliation having failed, the matter was referred to the CGIT in CR.No.03/2013. The CGIT, by its order dated 01.03.2019, held that the enquiry conducted by the respondent- management was not fair and proper. Thereafter, the respondent-management examined four witnesses before the CGIT. The CGIT, under impugned award dated 19.01.2021, has concluded that the charges leveled against the petitioner were successfully proved, endorsed the order of dismissal passed by the respondent-management and thus rejected the Reference. Challenging the award of the CGIT as well as the order of dismissal passed by the respondent, the petitioner is before this Court in this writ petition.
3. Heard Sri. Ravi Hegde, learned counsel for the petitioner, and Sri Vijay Malali, learned counsel for the -4- W.P. NO.104032/2022 respondent. Perused the entire writ petition papers including the records of the CGIT.
4. Learned counsel Sri. Ravi Hegde for the petitioner would contend that the award passed by the CGIT is contrary to the material on record and since there is no cogent evidence to prove the charge, the impugned orders are unsustainable. He submits that the CGIT held that the enquiry conducted by the respondent-management is not fair and proper; thereafter, the respondent-management examined four witnesses to prove the charge, but the evidence of the four witnesses would not lead to prove the charge against the petitioner.
5. The learned counsel for the petitioner would submit that the main allegation against the petitioner is that the petitioner physically assaulted Sri. K.Jawaharalal, Manager (Personnel) while the latter was discharging his duties in the office situated the Administrative Office Building. To prove the said charge, the respondent- management examined M.Ws.3, 4, 5 and 6 who are subordinate officers of Sri. K.Jawaharlal. Therefore, he -5- W.P. NO.104032/2022 submits that evidence of the subordinate officers cannot be taken note of to prove the charge against the petitioner.
6. The learned counsel for the petitioner would further submit that on the same allegation of assaulting and using filthy language against the superior official of the petitioner, a criminal case was registered and in the said criminal case, the petitioner has been acquitted. Therefore, he submits that the petitioner would be entitled for exoneration in the enquiry proceedings also. It is submitted that the Presiding Officer of the CGIT failed to appreciate the evidence of M.Ws.3, 4 & 5 properly and that the CGIT has not taken note of the fact that the petitioner was acquitted of the same charges in the criminal proceedings.
7. Lastly, the learned counsel for the petitioner would contend that the punishment of removal from service is not commensurate with the nature and gravity of the charges leveled against the petitioner. He would submit that, even assuming that the charge of abusing or using filthy language against the superior official is proved, the same would not attract imposing of severe punishment of -6- W.P. NO.104032/2022 removal from service, but it might attract any minor punishment. In that regard, the learned counsel places reliance on the decision of the Hon'ble Apex Court in Ved Prakash Gupta V. M/s. Delton Cable India (P.) Ltd.1; Ram Kishan V. Union of India and Ors.2; and Syed Khader Mohiuddin V. The Chairman Tamil Nadu Public Service Commissioner & Anr3. Thus, the learned counsel for the petitioner would pray for allowing the writ petition, to set aside the impugned orders, and to direct the respondent to reinstate the petitioner.
8. Per contra, Sri. Vijay Malali, learned counsel for the respondent-management would support the order passed by the CGIT and would submit that an employee who misbehaves, assaults and uses filthy language against superior officials would deserve the punishment of removal or dismissal; if such indiscipline is permitted, it would be difficult for the management to carry out the administration and it would affect the entire working atmosphere. Learned counsel, referring to the evidence of M.Ws.3, 4 and 5 would 1 (1984) 2 SCC 569 2 (1995) 6 SCC 157 3 1997(II) LLJ 111 -7- W.P. NO.104032/2022 submit that the management has proved the charge beyond doubt. He submits that the petitioner has admitted in his evidence that he had to talk loudly with Sri. K.Jawaharlal, but denied assaulting Sri. K.Jawaharlal.
9. Learned counsel for the respondent-management would further contend that though the petitioner is acquitted of the charges leveled against him in the criminal case, the same cannot be taken note of since the standard of proof in a criminal case is entirely different from that of the proof in a departmentmental enquiry. He submits that preponderance of probabilities would be sufficient in a departmental enquiry and it would not attract strict proof of evidence. Further, the learned counsel would submit that, if this Court comes to the conclusion that the petitioner would be entitled for reinstatement, the petitioner shall not be entitled for backwages since he has not worked. Thus, he prays for dismissal of the writ petition.
10. Having heard the learned counsels for the parties and on perusal of the writ petition papers and also the -8- W.P. NO.104032/2022 records of the CGIT, the only point which falls for consideration is, Whether the punishment of removal from service is proportionate to the nature and gravity of charge leveled against the petitioner?
11. The answer to the above point would be in the negative for the following reasons:
(a) Under Article 226 of the Constitution of India, judicial review in service matters that too in a departmental proceeding is very limited. Moreover, in exercise of power of judicial review, the High Court would not act as an Appellate Authority and it is important to note that the Court would not re-appreciate the evidence, but this Court would examine as to whether the procedure adopted in disciplinary proceedings is fair and reasonable and as to whether the charged employee is given reasonable opportunity to defend himself.-9- W.P. NO.104032/2022
(b) The Hon'ble Apex Court in the case of State Bank of India Vs. A.G.D.Reddy4, has considered the scope of judicial review in disciplinary proceedings and, at paragraph 42, it is held as follows:
"42. It is now well settled that the scope of judicial review against a department enquiry proceeding is very limited. It is not in the nature of an appeal and a review on merits of the decision is not permissible. The scope of the enquiry is to examine whether the decision-making process is legitimate and to ensutre that the findings are not bereft of any evidence. If the records reveal that the findings are based on some evidence, it is not the function of the court in a judicial review to re-
appreciate the same and arrive at an independent finding on the evidence. This lakhman rekha has been recognized and reiterated in a long line of judgments of this Court."
(c) In the case on hand, the charge against the petitioner is that he physically assaulted Sri. Jawaharlal, Manager (Personnel) while he was discharging his duties in his office situated in Administrative Office Building. No 4 2023 SCC OnLine 1064 - 10 - W.P. NO.104032/2022 doubt, in terms of Clause 28(2)(vii) & (xii) assaulting threatening, intimidation of any workman or officer of the management within the mine/feasibility/premises/ boundaries would amount to misconduct. Though the CGIT held that the enquiry conducted by the respondent-management is not fair and proper, to prove the charge against the petitioner, the management examined four witnesses before the CGIT and the petitioner had opportunity to cross-examine these witnesses. In fact, the petitioner cross-examined management witnesses, but nothing in favour of the petitioner is elicited in the cross-examination. In fact, as stated above, this Court would not go into the sufficiency of evidence and re-appreciate the evidence. This Court would only examine as to whether there is evidence and it is for the management to prove the charge on preponderance of probabilities. On going through the evidence on record, we are of the view that the charge against the petitioner with regard to using filthy language and assaulting his superior official i.e., Manager (Personnel) is proved. The CGIT has - 11 - W.P. NO.104032/2022 thread-bare discussed the evidence of management witnesses and has rightly come to the conclusion that the charge against the petitioner is proved. The evidence of the petitioner would indicate that the petitioner has raised his voice though he has denied assaulting his superior official. The evidence of M.Ws.5 and 6 as well as other witnesses would indicate that they were present at the spot when the incident took place. In the above circumstances, we are of the view that there is no ground or material to interfere with the finding that the charges are proved.
(d) Learned counsel for the petitioner contended that since the petitioner is exonerated in the criminal case, he would be entitled for exoneration in the departmental enquiry too. It is to be noted that standard of proof in criminal case and in departmental enquiry stand on different footing. In departmental proceedings, strict rule of evidence would not be applicable and charge could be proved on preponderance of probabilities. Moreover, it is not forthcoming from the records as to - 12 - W.P. NO.104032/2022 whether the acquittal of the petitioner in the criminal proceedings is honourable acquittal or acquittal on technical grounds or whether it is for want of evidence. In that circumstance, the said contention is liable to be rejected.
(e) The contention that the punishment of removal from service is disproportionate to the nature and gravity of charge against the petitioner requires consideration. It is settled position of law that if the punishment imposed by the management or disciplinary authority or the appellate authority shocks the conscience of the Court/Tribunal, the Court could interfere with such punishment and could direct the management or authority to reconsider the punishment imposed or in appropriate cases, it could impose appropriate punishment assigning reasons.
(f) The Hon'ble Apex Court in Ved Prakash Gupta (supra), in an identical fact-situation of dismissal of employee from service for abusing the officer of the management within the premises of the factory, has held that the - 13 - W.P. NO.104032/2022 termination of service is invalid and unsustainable in law. In Ved Prakash Gupta's case (supra), at paragraph 13, it is observed as follows:
"13. ......We are therefore of the opinion that the punishment awarded to the appellant is shockingly disproportionate regard being had to the charge framed against him. We are also of the opinion that no responsible employer would ever impose in like circumstances the punishment of dismissal on the employee and that victimization or unfair labour practice could well be inferred from the conduct of the management in awarding the extreme punishment of dismissal for a flimsy charge of abuse of some worker or officer of the management by the appellant within the premises of the factory. We therefore hold that the termination of the appellant's service is invalid and unsustainable in law, and that he is entitled to reinstatement with full back wages and other benefits including continuity of service. The appeal is allowed accordingly with costs quantified at Rs 1000. The writ petition is dismissed without costs."
In Ram Kishan's case (supra), at paragraphs 11 and 12, the Hon'ble Apex Court has held as follows: - 14 - W.P. NO.104032/2022
"11. It is next to be seen whether imposition of the punishment of dismissal from service is proportionate to the gravity of the imputation. When abusive language is used by anybody against a superior, it must be understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of abusive language. No strait-jacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service. Each case has to be considered on its own facts. What was the nature of the abusive language used by the appellant was not stated.
12. On the facts and circumstances of the case, we are of the considered view that the imposition of punishment of dismissal from service is harsh and disproportionate to the gravity of charge imputed to the delinquent constable. Accordingly, we set aside the dismissal order. We hold that imposition of stoppage of two increments with cumulative effect would be an appropriate punishment. So, we direct the disciplinary authority to impose that punishment. However, since the appellant himself is responsible for the initiation of the proceedings, we find that he is not entitled to back wages; but, all other consequential benefits would be available to him."- 15 - W.P. NO.104032/2022
(g) In the instant case also, the charge against the petitioner is of assaulting and using filthy language against his superior official. With regard to the assault, the CGIT has noted that there is material contradiction with regard to assault, but ultimately, has held that the petitioner voluntarily entered the chambers of Sri. K.Jawaharlal, on 29.02.2008, abused him filthily, became violent and slapped him with his chappal in the presence of other executives. However, in view of the decisions of the Hon'ble Apex Court referred to above, we are of the view that the penalty of removal of the petitioner from service on the proof of misconduct of abusing by using filthy language and slapping, in the peculiar facts of the present case, would be shockingly disproportionate to the proved charge. Hence, the order of removal requires to be set aside with a direction to the respondent-management/disciplinary authority to impose any other punishment other than the removal or dismissal or compulsory retirement.
- 16 - W.P. NO.104032/2022
(h) Since we have come to the conclusion that the charge of using filthy language against superior official is proved and as the petitioner has not worked from the date of removal, he would not be entitled for backwages and continuity of service.
12. For the reasons recorded above, the following:
ORDER
i) The writ petition is allowed in part.
ii) The order of penalty of removal under order dated 10.02.2009 and the Appellate Authority dated 14.02.2009, and the order of the CGIT dated 19.01.2021 are set aside with a direction to the disciplinary authority to impose any other punishment on the proved charge of misconduct other than punishment of removal, dismissal or compulsory retirement from service.
iii) The petitioner would be entitled for reinstatement into service forthwith, but would not be entitled for backwages and continuity of service.- 17 - W.P. NO.104032/2022
iv) Time for compliance is three months from the date of uploading of this order on the website of the High Court of Karnataka.
Sd/-
JUDGE Sd/-
JUDGE KMS