Gujarat High Court
The General Manager, Western Railway vs Mangliben Mehrubhai Patel W/O Late Shri ... on 3 January, 2025
NEUTRAL CITATION
C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11762 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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THE GENERAL MANAGER, WESTERN RAILWAY & ORS.
Versus
MANGLIBEN MEHRUBHAI PATEL W/O LATE SHRI MEHRU MOTI
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Appearance:
MS ARCHANA U AMIN(2462) for the Petitioner(s) No. 1,2,3,4
ANKIT V MEKVAN(8838) for the Respondent(s) No. 1
JAITUNKUMAR N PATEL(8456) for the Respondent(s) No. 1
MR K R MISHRA(6312) for the Respondent(s) No. 1
PRABHATSINH J PARMAR(7996) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 03/01/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. K.R.Mishra waives service of notice of Rule on behalf of respondent.
2. This petition is filed under Article 226 and 227 of Constitution of India challenging the award passed by the learned C.G.I.T. in reference (C.G.I.T) No.208 of Page 1 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined 2004 dated 30.01.2019 thereby, directions were issued to treat the punishment of removal from service as voluntary retirement with all retirement benefits and to give family pension to Smt. Mangli Meherbhai Patel, widow of deceased workmen, from the date of death of deceased workmen.
3. Facts needed to be considered for disposal of the present case are as follows:
3.1. Husband of respondent was appointed as a Gangman in the Western Railway, Dahod in Engineering Department in the year 1963. The husband of respondent remained absent from his duty without intimation to his superior officer for a long period of 93 days in the year 1987, 130 days in year 1988 and 168 days in the year 1989. Charge-sheet was issued on 23.11.1989 for unauthorized absenteeism and Inquiry Officer was appointed for conducting departmental Inquiry for the charge of unauthorized absence. The delinquent participated in the departmental Inquiry and gave his statement on 30.04.1991, accepting the charge of unauthorized absenteeism during the period mentioned in the charge-sheet. The husband of the Page 2 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined respondent has given explanation that he was suffering from TB, therefore, he could not resume for the work.
However, no medical certificates were produced neither treatment was taken from Railway Hospital. The Inquiry Officer found that the charge of unauthorized absent is proved, in view of the admission made by the husband of the respondent, and the report was submitted before the Disciplinary Authority. The Disciplinary Authority after going through the report submitted by the Inquiry Officer imposed punishment of removal from service with immediate effect vide order dated 08.05.1991. Challenging the order of removal from the services, the appeal was filed before the learned appellate Authority on 15.05.1991 submitting his explanation that as he was suffering from TB and remained hospital since long time, he could not inform the same to the superior officer in time. The learned authority has dismissed the above appeal by observing that Medical Certificate produced with the memo of appeal did not cover the period of absence and the employee is a habitual absentee. After a period of five years, an application was submitted on 30.08.1997, under section 10 read with section 2A of the Page 3 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined I.D.Act before the Assistant Labour Commissioner (Central) praying that instead of dismissal, voluntary retirement, be permitted to be taken. During pendency of the proceedings, employee also filed an application before the revisional Authority on 22.12.1997, asking the permission to retire voluntarily with retrospective effect. The revisional authority vide order dated 8.10.1998, rejected the revision petition on the ground of delay. The said order was produced subsequently, before the Assistant Labour Commissioner in pending conciliation proceedings. As the conciliation proceedings failed, the failure report was submitted before the appropriate government by the Assistant Labour Commissioner and thereafter, dispute was referred to the Tribunal for adjudication on 16.06.1999 and was registered as reference (I.T.) Case No.129 of 1999. The employees filed the statement of claim on 12.08.1999 and the written statement was submitted by the petitioner on 11.09.2000 during the pendency of the proceedings before the Tribunal, the husband of the respondent expired on 17.12.2006 and therefore, his wife submitted an application on 30.01.2007, seeking Page 4 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined permission to implement her as heirs in place of workmen. Thereafter, from Industrial Tribunal, Vadodara, the reference was transferred to the learned C.G.I.T. Ahmedabad and was renumbered as reference no.208 of 2204. On 11.05.2014, an application was filed by Mangliben before the learned Tribunal that she is also widow of a workman namely Mehrbhai Motibhai Patel. She has also produced the Death Certificate and also stated that the deceased workman had two wife's namely Mangliben and Jhaveriben.
3.2. On 28.04.2018 an application was filed for production of service book of late employee which was replied by the petitioner that as the case is too old and as per the policy retention period of old record is only for three years. Therefore, the service book cannot be placed on record. Learned Tribunal after hearing to the parties has passed an award holding that as the employee has died, therefore it would be proper to treat the punishment of removal from service as voluntary retirement with all retirement benefits and to give the family pension to Smt. Mangliben from the date of death of deceased workman. The above order is a subject matter of Page 5 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined consideration before this Court.
4. Heard learned advocate Ms.Archana Amin for the petitioner and learned advocate Mr.K.R.Mishra for the respondent.
4.1. Learned advocate Ms.Archana Amin, for the petitioner, has submitted that during the inquiry proceedings, workmen himself had admitted his unauthorized absent and he has given his own statement on 30.04.1991, labour court has committed error in holding that it was imperative on the Inquiry Officer to provide some intelligent Trade Union leader or some other sincere man to defend him in Inquiry. It is submitted that when the charge was admitted by the employee himself, no difference would have been made even if some assistance would have been provided. In addition to that, the charge-sheet itself clearly mentioned that deceased employee can take assistance from any trade union for assisting in presenting his case before the Inquiry Officer. Therefore, it was for the deceased employee to decide whether he wanted any assistance or not.
4.2. It is submitted that when the Officer entrusted with Page 6 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined Departmental Inquiry has come to a conclusion on the basis of reliable and cogent evidence, then the scope of judicial review is very narrow. In absence of any loopholes in proceedings learned Tribunal committed error in interfering with departmental action. It is further submitted that a statement of late employee was recorded on 30.04.1991, which was read over and explained to him in Gujarati and late employee had also signed on the said statement. At no point of time, late employee has disputed his statement or even objected to the number of days of unauthorized absence. In addition to that, statement of In-charge Officer, who used to provide the salary to late employee, was recorded on 01.05.1991. Very specific question for not preparing salary slip of the period of unauthorized absent period when it was asked, and it was answered that since the employee was absent for that period, no salary was paid to him. The Inquiry Report prepared and submitted before the Disciplinary Authority and on considering the report, and after due application of mind, order of removal was passed on 03.05.1991, which was challenged by raising the dispute before the Assistant Page 7 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined Labour Commissioner, Central on 30.08.1997. Learned labour Court, without giving cogent reasons, came to conclusion that Departmental Inquiry was held in very casual manner. Learned advocate Ms.Archana Amin further submits that it is obligatory upon the learned labour court to first decide preliminary issue as to legality of domestic Inquiry and in case found legal then ought to have decided proportionality of punishment imposed and if found disproportionate, then only ought to have interfere with quantum of punishment. Learned advocate Ms.Archana Amin further submits that by not doing the same, learned Industrial Tribunal has committed jurisdictional error and therefore, impugned award is required to be set aside and petition is required to be allowed.
4.3. Per contra, it is submitted by the learned advocate for the respondent Mr.K.R.Mishra that deceased workmen was the only earning member of the family, and since the demise of the workman, the family is on the verge of collapse economically. Learned advocate Mr.K.R.Mishra has further submitted that extreme penalty of dismissal or discharge was not justified in the instant case as due Page 8 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined to his illness, workman has not resumed the duty and as he was hospitalized for the treatment of T.B., he could not inform superior officer. Learned advocate Mr.K.R.Mishra has further submitted that in absence of providing assistance from the experts, deceased workman was unable to defend his case. The workman belongs to tribal areas and therefore, learned labour court has rightly interfered with the findings of punishment by exercising the power under section 11A of the Act. Learned advocate Mr.Mishra submits that in the instant case, learned C.G.I.T. has found it appropriate for invoking the powers as the punishment was found to be disproportionate looking to the misconduct of alleged willful absence of 391 days in the span of three years.
4.4. Learned advocate Mr.Mishra has further submitted that it is well settled rule of practice of the court not to interfere with exercise of discretionary power under Article 226 and 227 of the Constitution merely because two views are possible as there was no patent or flagrant error in the impugned award. It was prayed to dismiss the petition and to confirm the order passed by the Page 9 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined learned Court.
5. Having considered the submissions made by the learned advocates for the respective parties and on perusing the records, it transpires that on 23.11.1989, the charge- sheet was issued to the workmen for remaining on unauthorized absence. The reply was given by the workmen due to suffering from T.B. illness, did not resume the duties and he assured that no such mistakes would be committed in future, however, he did not produce any medical certificates or did not taken the treatment from the railway hospital. It was also submitted that his father has provided treatment to him in private hospital. However, he admitted his period of absenteeism. The order of dismissal was passed on 08.05.1991. An application was filed praying that as he was suffering from T.B. and admitted in the clinic at Dahod, he did not resume the duties, neither he could inform the Superior Officer, therefore, employee be permitted to join duty as this is the only livelihood.
6. The learned appellate authority has rejected the same on the ground that Medical Certificate which was produced for the dates 01.01.1991 to 12.04.1991 and held that Page 10 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined workmen was a habitual absentee however no previous instances were referred. A revision application which was filed was also rejected vide order dated 08.10.1998 by holding that revision is time barred. The dispute which was raised before the Assistant Labour Commissioner, Central was referred by the government to the Industrial Tribunal to decide that whether the action of the railway administration in removing Shri Mehrbhai Motibhai from service with effect from 08.05.1991 on the charges of misconduct is legal and justified?
6.1. Indisputably, the legality and validity of the Disciplinary Inquiry were never questioned before the Industrial Tribunal neither any finding were recorded to that effect. As per the contention raised by the workmen in his statement of claim he served for 20 years and Inquiry Officer has failed in providing the legal aid through some trade union leader or through some intelligent person.
7. At this stage, the decision rendered by the Apex Court in the case of Union of India and others Vs Subrata Nath reported in 2022 (16) scale 828 is required to Page 11 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined be referred wherein, the parameters were described within which the High Court can exercise the power under section 226 and 227 of the Constitution of India in the matter relating to the disciplinary proceedings. The relevant paragraphs are reproduced hereinbelow:
"16. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya7 , a two Judge Bench of this Court held as below: "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India8 , Union of India v. G. Ganayutham9 , Bank of India v. Degala Suryanarayana10 and High Court of Judicature at Bombay v. Shashikant S. Patil11).
17. In Chairman & Managing Director, V.S.P. v. Goparaju Sri Prabhakara Hari Babu12, a two Judge Bench of this Court referred to several precedents on the Doctrine of Proportionality of the order of Page 12 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined punishment passed by the Disciplinary Authority and held that:
"21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved."
18. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India v. P. Gunasekaran13 held thus:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;Page 13 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025
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(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
19. In Union of India v. Ex. Constable Ram Karan14, a two Judge Bench of this Court made the following pertinent observations:
"23. The well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the courts to assume and usurp the function of the disciplinary Page 14 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined authority.
24. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons."
20. A Constitution Bench of this Court in State of Orissa (supra) held that if the order of dismissal is based on findings that establish the prima facie guilt of great delinquency of the respondent, then the High Court cannot direct reconsideration of the punishment imposed. Once the gravity of the misdemeanour is established and the inquiry conducted is found to be consistent with the prescribed rules and reasonable opportunity contemplated under the rules, has been afforded to the delinquent employee, then the punishment imposed is not open to judicial review by the Court. As long as there was some evidence to arrive at a conclusion that the Disciplinary Authority did, such an order becomes unassailable and the High Court ought to forebear from interfering. The above view has been expressed in Union of India v. Sardar Bahadur15 .
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21. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor.
22. Applying the law laid down above to the instant case, we are of the view that the High Court ought not to have interfered with the findings of fact recorded by the Disciplinary Authority. Charge-1 levelled against the respondent pertained to negligence and dereliction of duty attributed to him for having failed to prevent theft of 800 kgs of copper wires lying at Alif Nagar scrap yard under his security cover while performing duty in the late hours of 7th November, 2007 upto the early hours of 8th November, 2007. Records reveal that the Disciplinary Authority has minutely examined the entire evidence brought on record including the deposition of Page 16 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined eight prosecution witnesses each of whom have corroborated the charges levelled against the respondent, duly supported by documentary and circumstantial evidence for arriving at the conclusion that the Articles of Charge-I stood proved against the respondent. Pertinently, the respondent did not produce any defence witness and the documents produced by him did not prove anything in his favour."
8. Applying above principle in the instant case, it is not in dispute that workman has served for more than 20 years. There were no other instances except the present one wherein, the respondent workman remained absent unauthorizedly and medical certificate which was issued suggests that the respondent-workman was suffering from Tuberculosis and as he was hospitalized for quite long period he could not resume the duty neither could inform to the superior officers. It is true that during the disciplinary proceedings he admitted his unauthorized absence however, it is also not in dispute that no legal assistance of some intelligent persons were provided, if the same would have been provided to the respondent- workman, then he could have requested before the Disciplinary Authority that instead of dismissal from the service, he be permitted to take voluntary retirement, however, in absence of the same, the Disciplinary Page 17 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025 NEUTRAL CITATION C/SCA/11762/2019 JUDGMENT DATED: 03/01/2025 undefined Authority has passed the order dismissing the service of present respondent.
9. In view of the above discussion, by not providing the legal assistance, respondent has violated the principle of natural justice and therefore, learned Presiding Officer has rightly allowed the reference in favour of the respondent-workman and this Court does not find any infirmity in the impugned judgment and therefore, this petition deserves to be dismissed being devoid of any merits.
10. Resultantly, this petition is dismissed. Rule is discharged.
(M. K. THAKKER,J) ARCHANA S. PILLAI Page 18 of 18 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:23:23 IST 2025