Central Administrative Tribunal - Delhi
Sh.Jitender Kumar vs Delhi Transport Corporation on 11 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 4463/2011
New Delhi this the 11th day of December, 2012
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. A.K. Bhardwaj, Member (J)
Sh.Jitender Kumar,
S/o Shri Narain Singh,
R/o C-133, Pocket-1, Mayur Vihar,,
Phase-1, Delhi-110092. Applicant
(By Advocate Shri G.S.Charya )
VERSUS
1. Delhi Transport Corporation
Through its Chairman-cum-Managing
Director, I.P.Estate, New Delhi.
2. The Depot Manager,
Delhi Transport Corporation,
NOIDA Depot, Sector-16,
NOIDA, U.P. Respondents
(By Advocate Ms. Arati Mahajan Shedha )
O R D E R
( Honble Mr A.K.Bhardwaj, Member (J):-
In terms of charge sheet dated 2.11.1994 ( Annexure P-2), the applicant was charged with misconduct of coming late on duty, starting altercation with conductor Shri Jasbir Singh as well as abusing him, threatening to lift him from his house and being under influence of the liquor. The said charges were enquired into by duly appointed Enquiry Officer. The applicant participated in the enquiry and refused to engage any defence helper. The opportunity to cross-examination of all the witnesses given to him could be availed to some extent. The relevant finding recorded in reasoned order dated 30.04.2010 read as under:-
Point no. 8. It is also evident from the record that you had been charge sheeted three times earlier and also faced the enquiry proceeding and as such, you were not new to the enquiry proceeding and its procedures. On the perusal of the records of OA No. 4463/2011 the enquiry proceedings, it was found that on the outset of the enquiry, the Enquiry Officer has specifically asked you about the defence assistance of any co-worker. You refused to engage any co-worker for your defence. Further, it is clear from the record of the enquiry proceedings that the Enquiry Officer had given the opportunity to you for cross examination of all the witnesses on all material points. The averments made by you at point 8 in your representation regarding not providing the assistance and also not giving opportunity of cross examination cannot be substantiated from the enquiry proceeding record. The enquiry officer specifically asked you about defence assistance and you yourself chose not to have one cannot blame enquiry officer for same. Enquiry proceedings show that enquiry officer did his duty properly and gave you all the opportunities as he was required to give under the law. Therefore, blame on enquiry officer made by you that he has conducted the enquiry half-heartedly is without any base and evidence. It is fact that Enquiry Officer had exonerated you from the charge of consuming liquor but it has held proved the charges of coming late on duty, threatening and abusing your superiors. The enquiry officer found the charge of coming to duty late, picking up an altercation with Jasbir Singh as well as abusing him proved against the applicant. The disciplinary authority accepted the report of Enquiry Officer and passed order dated 18.09.1995 imposing the penalty of removal from service on applicant. Against said order applicant filed Writ Petition before Honble High Court which was transferred to this Tribunal and registered as TA No. 652/2009. TA was disposed of in terms of order dated 12.11.2009 whereby the removal order dated 18.09.1995 was quashed and the matter was remitted back to Depot Manager (Noida) to pass a fresh order dealing with all the contentions of the applicant. Applicant also made a fresh representation dated 28.01.2010 to the Depot Manager. Thus the Depot Manager passed fresh order dated 30.04.2010 confirming the penalty order dated 18.09.1995. Questioning the order dated 30.04.2010 (ibid), applicant filed OA 2541/2010 in which this Tribunal passed order dated 30.03.2011 directing the applicant to file a comprehensive appeal before appellate authority within two weeks and the appellate authority was directed to decide the same within two months. Paras 7 and 8 of the said order read as under:-OA No. 4463/2011
7. In the facts and circumstances of the case, we direct the applicant to file a comprehensive appeal before the AA taking all the grounds on which he is placing reliance within a period of two weeks. The AA is directed to dispose of his appeal by passing a speaking order according to rules within a period of two months from the date of supply of a copy of the appeal petition. The AA shall consider the present OA as a supplementary appeal while deciding he appeal petition of the applicant.
8. The OA is remitted to the AA in terms of the aforesaid directions. No costs. Accordingly the applicant preferred appeal dated 20.04.2011 addressed to the Chairman-cum-Managing Director, Delhi Transport Corporation, I.P.Estate and Deputy C.G.M. (East), I.P.Estate, New Delhi contending therein:-
The charges alleged against him were found not proved both by the Enquiry Officer as well as Disciplinary authority.
He was late only by 10 minutes due to technical snag in his scooter. While he was never given an opportunity to give explanation regarding his past record, said record was taken into consideration by the disciplinary authority in the penalty order. The past record cannot be a consideration for imposing the major penalty.
The charge of coming late by 30 minutes, threatening Shri Jasbir Singh, Conductor and being under influence of liquor was not proved against the applicant, while the only charge of altercation proved against him was not grave enough to invite major penalty of removal from service.
The appellate authority passed order No. NOD/PFC (Dr.)Appeal/2011/1890 dated 17.06.2011 rejecting the said appeal, taking the view:-OA No. 4463/2011
The order dated 30.04.2010 passed by the disciplinary authority was a detailed and speaking order.
In his appeal itself the applicant reiterated that he was late by 10 minutes instead of 30 minutes.
It was clear from the record, the enquiry proceeding and the report of the enquiry officer that the applicant indulged in uncalled for behaviour which was unacceptable in the interest of maintenance of discipline in the Corporation.
Applicant could not produce any fresh convincing material to establish that the altercation was only minor and simple.
The applicant was in habit of quarrelling and manhandling his colleagues/superiors for which he had been punished twice on earlier occasion.
The DTC being a labour intensive organization, every worker has to behave himself otherwise there would be anarchy in the Corporation and no discipline could be maintained which may result in disruption of service to the commuters in the city, thus the punishment of removal from service of the Corporation was proportionate to the misconduct committed by the applicant.
During the enquiry, the applicant was given full opportunity to defend himself, he was asked to seek the help of co-worker or defence assistant and bring witnesses, if any, in his defence.
It was the applicant only who declined to cross examine all the witnesses.
The charge sheet specifically indicated that the past record of the applicant would be taken into consideration while passing the final order in the matter. Such past record may not be sole criteria for imposing major penalty in the removal of the workman. However, the same can certainly be referred to in OA No. 4463/2011 conjunction with the charges in the charge sheet and taken into account while imposing the final punishment. In the past also applicant besides being habitually negligent towards his duty was also found guilty and punished for quarrelling with a driver along with some other friends at Noida Depot gate on 25.05.1990, manhandling the senior colleagues and pressurizing them for marking his attendance in 1993. Repeated quarrels/manhandling/altercations cannot be tolerated in any Organization.
2. Questioning the order of penalty dated 30.04.2010 and rejection of appeal dated 17.06.2011 (ibid), the applicant has filed present OA under Section 19 of the Administrative Tribunals Act, 1985 raising several grounds pervaded in para A to J of the OA. However, during the course of hearing the learned counsel appearing for applicant contended only:-
that charges alleged against the applicant were not supported by the witnesses.
The past record of the applicant did not form part of charge sheet but was taken into account in imposing penalty upon him.
The penalty of removal imposed upon him is disproportionate to the charges.
In view of the nature of charges the applicant alone could not have been penalized. He relied upon the judgment of Honble Delhi High Court dated 12.10.2011 delivered in Rakesh Kulhari Vs. Central Industrial Security Force.
On the other hand, Ms. Arati Mahajan Sheda, learned counsel for the respondents contended:OA No. 4463/2011
In the charge sheet, it had been specifically indicated that the past conduct of the applicant would be taken into account.
The charge was supported by the eyes witnesses.
In view of the judgment of Honble Supreme Court in U.P. State Transport Corporation Vs Subhash Chandra Sharma and Ors (AIR 2000 SC 1163), the punishment of removal imposed upon the Driver in State Road Transport Corporation for abusing the Cashier and threatending to assault him could not be considered shockingly disproportionate. And in Mahindra and Mahindra Ltd Vs N.B.Narawade ( 2005 (3 SCC 134), it has been held that the filthy language used by the workman could not be tolerated by any civilized society.
3. We have heard the learned counsel appearing for the parties and perused the record. As far as the question of sufficiency of evidence in support of charge is concerned, as has been held by Honble Supreme Court in High Court of Judicature at Bombay V. Udaysingh S/o Ganpatrao (1997) 5 SCC 129), the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. In the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of proof beyond doubt cannot be invoked in such proceeding and preponderance of probability with some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. Relevant excerpts of the said judgment read as under:-
12. It is seen that the evidence came to be recorded pursuant to the complaint made by Smt. Kundanben, defendant in the suit for eviction. It is true that due to time lag between the date of the complaint and the date of recording of evidence in 1992 by the Enquiry Officer, there are bound to be some discrepancies in evidence. But the Disciplinary proceedings are not a criminal trial. Therefore, the scope of enquiry is entirely different from that OA 4463/2011 of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see whatever there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion. The question, therefore, is; whether on the basis of the evidence on record, the charge of misconduct of demanding an illegal gratification for rendering a judgment favourable to a party has been proved ? In that behalf, since the evidence by Kundanben, the aggrieved defendant against whom a decree for eviction was passed by the respondent alone is on record, perhaps it would be difficult to reach the safe conclusion that the charge has been proved. But there is a contemporaneous conduct on her part, who complained immediately to her advocate, who in turn complained to Assistant Government Pleader and the Assistant Government Pleader in turn complained to the District Government Pleader, who in turn informed the District Judge. The fact that the District Judge made adverse remarks on the basis of the complaint was established and cannot be disputed. It is true that the High Court has directed the District Judge to substantiate the adverse remarks made by the District Judge on the basis of the statement to be recorded from the advocates and the complaint. At that stage, the respondent was not working at that station since he had already been transferred. But one important factor to be taken note of is that he admitted in the cross-examination that Shri Gite, District Government Pleader, Nasik had no hostility against the respondent. Under these circumstances, contemporaneously when Gite had written a letter to the District Judge stating that he got information about the respondent demanding illegal gratification from some parties, there is some foundation for the District Judge to form an opinion that the respondent was actuated with proclivity to commit corruption; conduct of the respondent needs to be condemned. Under these circumstances, he appears to have reached the conclusion that the conduct of the respondent required adverse comments. But when enquiry was done, the statements of the aforesaid persons were recorded; supplied to the respondent; and were duly cross-examined, the question arises; whether their evidence is acceptable or not? In view of the admitted position that the respondent himself did admit that Gite had no axe to grind against him and the District Judge having acted upon that statement, it is difficult to accept the contention that the District Judge was biased against the respondent and that he fabricated false evidence against the respondent of the three advocates and the complainant. When the evidence was available before the disciplinary authority, namely, the High Court, it cannot be said that it is not a case of no evidence; nor could it be said that no reasonable person like the Committee of five Judges and thereafter the Government could reach the conclusion that the OA 4463/2011 charge was proved. So, the conclusion reached by the High Court on reconsideration of the evidence that the charges prima facie were proved against the respondent and opportunity was given to him to explain why disciplinary action of dismissal from service could not be taken, is well justified Also in Union of India and Another Vs. B.C.Chaturvedi (1995 6 SCC 749), Honble Supreme Court viewed as under:-
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.OA 4463/2011
Nevertheless, as can be seen from the enquiry proceedings placed on record as Annexure R-3 to counter reply, State witness, namely, Khoobi Ram deposed during the enquiry that on 30.09.1994 when he was performing the job of Duty Officer between 1300PM to 2130PM, about 20.30PM, Mr. Jitender Singh, batch No. 16170 (applicant) was quarrelling with in-charge Shri Jasbir Singh and abusing him. The said State witness also deposed that when he could not succeed in pacifying the applicant, the assistance of security havaldar had to be taken to oust him. Another State witness Mr.Jasbir Singh also supported the charge by deposing during the course of enquiry that when he asked the applicant to attend the duty in time, failing which he could be marked as absent, the applicant reacted by abusing him. He also maintained his said stand during cross-examination also. The incident of altercation was also confirmed by the other witnesses, namely, Shri Sukddev Singh and Bhupinder Singh (Conductors). Even the defence witness, namely Shri Balraj Singh also confirmed the incident of altercation. Above all in his appeal the applicant himself accepted the fact of coming late. Para 9 of the appeal read as under:-
That the undersigned never ever threatened anybody as mentioned in the charge sheet and he was late only by 10 minutes due to a technical snag in his scooter, the fact which he produced before the inquiry officer and also stated in his representation dated 28.01.2010 before the disciplinary authority. In view of the aforementioned, we do not find any force in the submission of learned counsel for applicant that the impugned orders are vitiated being not supported by the witnesses.
4. As far as the plea of non mention of past record in the charge sheet raised by the learned counsel for applicant is concerned, we find that in the charge sheet placed on record by the applicant himself as OA 4463/2011 Annexure P-2 to the OA, it is clearly indicated that his past record was to be considered at the time of final orders. Relevant excerpts of the charge sheet read as under:
Your past record would also be considered at the time of final orders. Copy of report No. 301513 on which the show cause notice is based is annexed. Such past record mentioned in the statement placed on record as Annexure R-1 to counter reply read as under:
S.No. Case No. Misconduct Punishment
1. NOD/A.1(T) Disc.162/86 dt.24.9.86 Drivers performing his duty without uniform on 8.8.86 Warning
2. NOD/A.1/(T) Damage-87/86 dt.1.10/86 At fault by accident committee COD nil on 14.5.86 Warned
3. NOD/A.1/(T) Disc.-39/9/646 dt.25.5.90 Placed under suspension w.e.f.26.5.90 causing quarrelling with w.e.f. 26.5.90 causing quarrelling with driver B.No.13690 alongwith some friends
4. NODDA/A.I/(T)/Disc/CS-39/90/1896 dt.12.7.90 Released from suspension Dt.10.5.91 Quarrelling with driver B.No.13690 alongwith some friends in front of gate of Noida Depot on 25.5.90 at 17.40 hrs. Stoppage of one increment without cumulative effect.
5. NOD/A.1(T)/CS/CS-39/90/91/1 623 dt.31.10.91 Quarrelling with driver B.No. 13690 alongwith some friends in front of gate of Noida Depot on 25.5.90 at 17.40 hrs. Punishment stoppage of one increment without cumulative effect is reduced to warning
6. NOD/A.1/(T)/Disc/22/93 dt.11.3.93 (1) Pressurized for attendance to Sh.Dharmvir T.I and (2) Manhandles him. Warning
7. NOD/A.1/(T)ST/Damage/82/93/1416 dt.21.5.93 F/R big glass broken COD Rs.625/ on 26.3.93 Warning
8. NOD/A.1(T)/CS-111/94/95 dt.16.1.95 Unauthorized absent w.e.f. Jan94 to May 94 for 26 days Censured
9. NOD/A.1 (T)/CS-124/94/95/37 dt.10.1.95 As per report of duty officer of dated 16.8.94 he parked the staff bus for away from the depot gate with far away from the depot gate without doing needful and found girl sitting in the bus. Censured OA 4463/2011 Besides in the counter reply filed on behalf of the respondents there is specific reference to said R-1 in following words:-
Rather as is evident from his past record, there are several adverse entries against him. A copy of the past record of the applicant is annexed herewith as Annexure R-1. He was warned five times and censured twice for various misconducts from 24.9.86 till 10.1.95. Applicant has not filed any rejoinder. In the circumstances we are unable to accept the contention put forth by the counsel for applicant that the past record of the applicant being not part of the charge sheet could not have been taken into account by the disciplinary authority while passing the order of penalty. The plea of proportionality of the penalty imposed upon the applicant has been specifically dealt with by the appellate authority in its order dated 17.06.2011 as follows:
VII. Another point raised by the workman in his appeal is regarding dis-proportionality of the punishment. I have given full consideration to this contention of the workman. However, I am unable to agree as it is evident that the applicant was habitual of quarrelling and manhandling his colleagues/superiors for which he was punished twice on earlier occasions. It is further highlighted that DTC being a labour intensive organization, every worker has to behave himself otherwise there will be anarchy and no discipline can be maintained resulting in improper services to the commuters of Delhi. As such, the punishment of removal from services of this corporation is proportionate to the grave misconduct committed by the applicant.
Even otherwise also as has been viewed by Honble Supreme Court in Union of India and Another Vs. B.C.Chaturvedi (1995) 6SCC 749), the High Court/Tribunal while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. Para 18 of the judgment read as under:-
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are inverted with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the OA 4463/2011 power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare case, impose appropriate punishment with cogent reasons in support thereof. In the present case since the appellate authority has already taken a view on the proportionality of the penalty, we do not consider it appropriate even to remit the matter back to said authority to take a view on the quantum of punishment.
5. As far as the reliance placed by the learned on the judgment of Delhi High Court in Rakesh Kulhari Vs. Central Industrial Security Force ( W.P. ( C) 5161/1998) is concerned, in the said case the petitioner had misbehaved with Ct. D.K.Jaina while receiving ration. In view of the fact that the defence of the petitioner was his false implication malafidely by senior officer and in view of the deposition of Ct.D.K Behera, i.e. he had seen Ct. D.K Jaina quarreling with some other officers, Honble Delhi High Court viewed that since the origin of the quarrel is unknown, the case was to be treated as of a mutual fight and Ct. D.K. Jaina could not have been treated as an angel. Para 56 of the judgment read as under:
56. The evidence shows that a quarrel took place between the petitioner and Ct.D.K.Jaina. The origin of the quarrel remains unknown. It is a case of a mutual fight and we see no reason why Ct.D.K.Jaina should have been treated as an angel and the petitioner the devil. If we look at the medical record pertaining to Ct.D.K.Jaina and the petitioner, we find the petitioner having received more blos vis-`-vis Ct.D.K.Jaina and if we factor in the defence evidence it would show that Ct.D.K.Jaina had the greater aggressive role. In the present case, the origin of the quarrel is not unknown, rather the same is part of the charge sheet itself, i.e. the late coming of the OA 4463/2011 applicant on duty. In the circumstances, the judgment relied upon by applicant is distinguishable on facts. Besides, in Mahindra and Mahindra Ltd Vs. N.B.Narawade (2005 (3 SCC 134), relied upon by learned counsel appearing for respondents, Honble Supreme Court viewed that the punishment of dismissal for using abusive language cannot be held to be disproportionate. Paras 20 to 26 of the judgment read as under:-
20. It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the labour court/Industrial Tribunal in interfering with the quantum of punishment awarded by the Management where the concerned workman is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which requires the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court can not by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed herein above atleast in two of the cases cited before us, i.e. Orissa Cement Ltd. (supra) and New Shorrock Mills (supra), this Court held: "punishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilized society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to herein above.
21. Learned counsel for the respondent contended that there was sufficient provocation for the use of such words because the workman was asked to do certain work which was impossible to be done by any person without causing harm to himself, but this is not the defence that was taken in the enquiry or before the Labour Court and is being argued for the first time before this Court. On the contrary, the sole defence of the workman was that he did not remember abusing the engineer concerned.OA 4463/2011
22. We may also note here that the learned counsel for the appellant has pointed out from the records that the workman was charge-sheeted more than once on earlier occasions and inspite of the gravity of the offence he was dealt with leniently. He pointed out that in one such earlier instance this workman had assaulted his co-worker with a galvanized pipe causing grievous injury, even then he was punished with 4 days suspension only which according to the learned counsel clearly shows that the Management- appellant is not being vindictive.
23. Taking into consideration the over all fact situation and the law laid down by this court and inspite of the fact that three courts have concurrently come to the conclusion that the punishment of dismissal would be disproportionate to the misconduct, we will have to disagree with those findings.
24. For the reasons stated above, this appeal succeeds. The order of the Division Bench, Single Judge of the High Court and that of the Labour Court to the extent that it sets aside the order of dismissal and directs the reinstatement, is quashed. We uphold the order of the disciplinary authority dismissing the respondent-workman from service.
25. The appeal is allowed.
CIVIL APPEAL NO. 1507 OF 2003
26. This is an appeal filed by the workman who is the respondent in the above civil appeal questioning the quantum of reduction in his back wages. In view of the fact that we have allowed the appeal of the Management by our judgment in Civil appeal No. 1508 of 2003 this appeal becomes infructuous and the same is dismissed. In U.P. State Road Transport Corporation Vs Subhash Chandra Sharma and Ors (AIR 2000 SC 1163), it has been held thus :
9. The Labour Court, while upholding the third charge against the respondent nevertheless interfered with the order of the appellant removing the respondent from the service. The charge against the respondent was that he, in drunken state, along with a conductor went to the Assistant Cashier in the cash room of the appellant and demanded money from the Assistant Cashier. When the Assistant Cashier refused, the respondent abused him and threatened to assualt him. It was certainly a serious charge of misconduct against the respondent. In such circumstances, the Labour Court was not justified in interfering with the order of removal of respondent from the service when the charge against him stood proved. Rather we find that the discretion exercised by the Labour Court in the circumstances of the present case was capricious and arbitrary and certainly not justified. It could not be said that the punishment awarded to the respondent was in any way "shockingly disproportionate" to the nature of the charge found proved against him. In our OA 4463/2011 opinion, the High Court failed to exercise its jurisdiction under Article 226 of the Constitution and did not correct the erroneous order of the Labour Court which, if allowed to stand, would certainly result in miscarraige of justice.
No other contention has been put forth by the learned counsel for applicant, OA is found devoid of merit and is accordingly dismissed.
No cost.
( A.K.Bhardwaj) ( Sudhir Kumar ) Member (J) Member (A) sk