Delhi District Court
Maharaj Singh vs M/S The Directorate Of Education on 8 October, 2024
IN THE COURT OF RITU SINGH,
DISTRICT JUDGE & ADDL. SESSIONS JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LIR No. 4141/2018
CNR No.DLCT13-004930-2018
Sh. Maharaj Singh S/o Sh. Sarni,
R/o Village-Heda, Distt-Bhagpat,
Maya Mohalla, Delhi
Through Delhi Prashashan Vikas Vibhag
Industrial Employees Union,
Aggarwal Bhawan, G.T. Road,
Tis Hazari, Delhi-110054 ....Workman
Vs.
(1) The Directorate of Education,
Through its Director, Govt of NCT of Delhi,
Through its Director, Room No.12,
Old Secretariat, Delhi-110054
(2) M/s govt. Boys Senior Secondary School,
Gokalpur Village, Delhi ...Managements
Date of Institution : 16.11.2018
Date of Argument : 27.07.2024
Date of Award : 08.10.2024
Decision : Award passed
AWARD
1. Vide this Award, this Court shall decide the Industrial
Dispute which was referred by Deputy Labour Commissioner
(District East/North-East, Delhi) on a complaint filed by the
workman against the Management, vide reference no. F.24(108)/
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Lab/NE/2018/Ref/1732 dated 11.06.2018, u/s 10(1)(c) and 12 (5)
of The Industrial Disputes Act, 1947, wherein the following
reference was to be answered :-
"Whether the termination of services of Sh. Maharaj
Singh S/o Sh. Sarni vide order dated 16.01.2008, on the
ground of conviction in criminal case, by the management,
is illegal and /or unjustified, and if so, to what relief is he
entitled and what direction are necessary in the respect.".
THE CLAIM OF THE WORKMAN
2. The workman Sh. Maharaj Singh has filed the present
claim petition under Industrial Disputes Act, seeking setting aside
order of termination/dismissal dated 16.01.2008 and to reinstate the
workman in service with continuity of service and full back wages
and with all consequential either monetary or otherwise as well as
cost of litigation.
3. The workman Sh. Maharaj Singhhas stated in his
statement of claim that workman had joined the management on
31.05.1972 as a regular and permanent employee in the post of
Chowkidar/peon and his initial posting was at Government Boys
Senior Secondary School at B-Block, Kalkaji, Delhi and he had
been continuously discharging his duties entirely to satisfaction of
his superiors and has an unblemished and uninterrupted service
record to his credit and lastly he was posted at Government Boys
Senior Secondary School, Gokulpur Village, Delhi. Workman has
stated in his statement of claim that on 08.01.2004, he was on his
duty in the school upto 06:30PM and when he had reached at his
house/village District Bhagpat at about 08:30PM, he was told that
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there was a fight with the members of his family with other party
and consequently FIR bearing no. 08/04 at PS Bhagpat UP and the
workman was also wrongfully and malafidely implicated in the
said FIR.
4. The workman has stated in his statement of claim that
he was arrested and remanded to custody in abovesaid case and
released on bail and that on 19.03.2004 he was suspended from
services and his suspension was revoked by a committee on
13.07.2005 and that subsequently he was terminated from his
services vide order dated 16.01.2008 by management and his
termination was totally illegal, unjust and malafide on the ground
that he had not committed any misconduct and that he could not be
terminated as no charge sheet was issued to him and no domestic
inquiry was conducted against him by the management and the
capital punishment of dismissal was imposed upon him without
providing him any opportunity of being heard. It is grievance of
workman that he was wrongly convicted vide order dated
12.01.2007 passed by Ld. Trial Court at Bhagpat UP and he has
filed appeal against abovesaid order before Hon'ble Allahabad
High Court and he had been released on bail by the Hon'ble
Allahbad High Court. It is stated that at the time of alleged quarrel,
the workman was at his place of duty,which is far from place of
quarrel. It is stated that workman is totally unemployed, since the
date of his alleged termination and he had sent demand notice to
the management via registered AD dated 20.10.2015 but no reply
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has been received from the management and feeling aggrieved,
workman has approached the Union and filed the present case.
VERSION OF MANAGEMENT IN ITS REPLY
5. Notice of the statement of claim of the workman was
issued to the management and pursuant to the service of the notice,
the management had appeared before the Court and filed its written
statement/reply.
6. Management in its written statement, has taken
objection that present case is not maintainable as the management
has followed the due process of law and the workman was issued
show cause notice/memo for his unauthorized absence w.e.f
29.01.2004 and vide order dated 18.03.2004, workman was
deemed to have been suspended w.e.f the date his detention in FIR
No. 08/2004 PS Bhagpat UP and workman was in jail from
28.01.2004 to 19.03.2004 and subsequently order of suspension
were revoked vide order dated 13.07.2005 by the management.
Management issued show cause notice dated 29.04.2006 to the
workman herein to explain why he should not be charge sheeted
u/s 14 of CCS Conduct Rules, 1965, to which workman had failed
to file reply and thus present claim of the workman is liable to the
dismissed. It is further contended in reply of the management that
workman was convicted and sentenced to five years imprisonment
vide judgment dated 12.01.2007 in case bearing FIR No. 08/2004
PS Bhagpat and thereafter workman remained unauthorizedly
absent from his duty, thus, show cause notice dated 12.02.2007 was
issued by management to him calling the reason for his
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unauthorized absent w.e.f 11.01.2007. It is claimed in reply of
management that the management has conducted inquiry and
disciplinary authority vide order dated 16.01.2008 removed the
workman from service with immediate effect. It is further
contended by the management in its reply that workman had filed
appeal against his dismissal order before Secretary Education,
GNCT Delhi and the said appeal was also dismissed as there was
no irregularity in the order and the same was in accordance with
the rule and procedure as laid down under the CSS Rules. It is
contended that claim of the workman is devoid of merits and the
management has rightly terminated the services of the workman as
per rule 19 of CCS Rule and claim of the workman is time barred
and prayed that claim of the workman is liable to be dismissed.
7. Rejoinder to the written statement of the management
has also been filed by the workman, wherein he has reiterated his
averments mentioned in his statement of claim while denying the
contentions of management in the written statement.
ISSUES
8. Vide order dated 25.10.2019, the following issues
were framed in view of pleadings of the parties and the reference:-
(i) Whether services of workman were terminated by the
management is illegal and or unjustified manner due to
his conviction in a criminal case? OPW
(2) If the answer to the aforesaid issue is in
affirmative then as to what consequential relief is the
workman entitled for ?OPW
(3) Whether the workman himself is guilty of
unauthorized absentism by remaining absent from his
duty without any prior permission or sanction? OPW
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(4) Relief.
EVIDENCE OF WORKMAN
9. In order to prove the case, the workman appeared as
witness WW1 and filed his evidence affidavit Ex. WW-1/A
wherein he reiterated the contents of statement of claim on solemn
affirmation. Besides this, he had also placed on record the
following documents, which are as follows:-
(I) Ex.WW1 Demand notice dated 20.10.2014 sent by workman
to the management.
(ii) Ex.WW2 Postal receipt dated 02.11.2015
(iii) Ex.WW3 statement of claim of the workman.
(iv) Ex. WW4 Statement of claim before Conciliation Officer
dated 17.02.2009
(v) Ex. WW5 Copy of complaint to Directorate of education
(vi) Ex. WW6 Copy of order dated 16.11.2008
(vii) Ex. WW7 Appeal against the order of Director of Education
dated 16.01.2007
The workman was cross-examined by AR for the
management.
10. Thereafter, workman's evidence was closed and matter
was thereafter listed for management evidence.
EVIDENCE OF MANAGEMENT
11. The management had examined Sh. Surender Kumar
Sharma on 22.07.2022 who had tendered his evidence by way of
affidavit but was not available for his cross-examination thereafter
and therefore, the management had examined Sh. Vinod Kumar
Sharma on 18.08.2023 who had again tender his evidence by way
of affidavit but was also not available for his cross-examination.
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Lastly the management had examined Sh. Bijesh Kumar Sharma
on 22.03.2024, who had filed his affidavit by way of evidence as
Ex.MW1/A, reiterating the factual contents of the written statement
of management on solemn affirmation and was cross-examined by
Ld. AR for the workman. MW1 Sh. Bijesh Kumar Sharma also
placed on record the following documents:
(i) Ex.MW1/1 Copy of order dated 30.05.1972
(ii) Ex. MW1/2: Copy of dated 18.03.1974.
(iii) Ex. MW1/3: Copy of order dated 13.07.2005
(iv) Ex. MW1/4: Copy of attendance register and joining report of
Maharaj Singh dated 13.09.2005
(v) Ex. MW1/5: Show cause notice dated 29.04.2006 issued
against the workman.
(vi) Ex. MW1/6 there is no document with respect to Ex. MW1/6
(vii) Ex. MW1/7 : Copy of teachers attendance register January
2007
(viii)Ex. MW1/8: Copy of order dated 12.02.2007.
(ix) Ex. MW1/9: Copy of letter to Principal written by workman
dated 11.04.2007
(x) Ex. MW1/10: Copy show cause notice dated 06.07.2007
issued against workman.
(xi) Ex. MW1/11: Copy of memorandum dated 18.10.2007.
(xii) Ex. MW1/12: Copy of letter to Deputy Director Education
Yamunna Vihar Delhi written by the then Principal of G.B. S.
S School, Gaukulpur Village, Delhi 110084.
(xiii)Ex.MW1/13: Copy of order dated 08.11.2007.
(xiv)Ex.MW1/14: Copy of order dated 16.1.2008 whereby
workman had been removed from services.
(xv) Ex. MW1/15: Copy of judgment dated 12.01.2007 passed by
Sh. R. P. Singh, Ld. Upper Additional Judge, Bhagpat.
12. This witness was cross-examined by AR for the
workman and management evidence was closed.
13. Thereafter, matter was listed for final arguments. This
Court has heard the detailed final arguments addressed by AR for
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both the sides and gone through the record and documents on
record.
ARGUMENTS OF WORKMAN:-
14. Ld. AR for the workman has argued that workman Sh.
Maharaj Singh has had joined the management on 31.05.1972 as a
regular and permanent in the post of Chowkidar/peon and he was
terminated from his services vide order dated 16.01.2008 and his
termination was totally illegal, unjust and malafide on the ground
that he has not committed any 'misconduct' during course of
employment he could not be terminated and that no charge sheet
was issued to him and no domestic inquiry was conducted against
him by the management and that disproportionate punishment of
dismissal from service was imposed upon him without providing
him any opportunity of being heard and without proper application
of mind Ld. AR for the workman has prayed for setting aside order
dated 16.01.2008 of Disciplinary Authority vide which workman
was removed from service and for reinstatement of workman in
services of management with back wages and consequential
benefits.
ARGUMENTS OF MANAGEMENT:-
15. On the other hand, Ld. AR for the management has
argued on behalf of management the present case is not
maintainable as the management has followed the due process of
law and the workman was issued show cause notice/memo for his
unauthorized absent w.e.f 29.01.2004 and vide order dated
18.03.2004 workman was deemed to have been suspended w.e.f the
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date of his detention in custody in FIR No. 08/2004 PS Bhagpat as
workman was in jail from 28.01.2004 to 19.03.2004 and that order
of suspension was revoked vide order dated 13.07.2005 and that
management had thereafter issued show cause notice dated
29.04.2006 to the workman herein calling upon him to explain as
to why he should not be charge sheeted u/s 14 of CCS conduct
rules 1965 and workman had failed to file reply to the said show
cause notice and thus claim of the workman is liable to the
dismissed. Ld. AR for the management has argued that
subsequently workman was convicted and sentenced for five years
vide judgment dated 12.01.2007 in abovesaid case 294/04 bearing
FIR No. 08/2004 PS Bhagpat UP and since workman was
unauthorizedly absent from his duty and, thus, management had
issued show cause notice dated 12.02.2007 was issued to him
calling the reason for his unauthorized absent w.e.f 11.01.2007. It is
submitted that the management had issued show case notice dated
06.06.2007 to workman as to why appropriate penalty under Rule
19 CCS (CCA) Rules should not be imposed on him and gave him
time of 15 days to make his representation and disciplinary
authority vide order dated 16.01.2008 removed the workman from
service with immediate effect. It is further argued that that
workman had filed appeal against his dismissal order dated
16.01.2008 before the Appellate Authority, i.e., Secretary,
Department of Education, GNCT of Delhi and the said appeal was
also dismissed. He has further argued that claim of the workman is
devoid of merits and the management has rightly terminated the
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services of the workman as per rule 19 of CCS (CCA) Rules and
claim of the workman is time barred and prayed that claim of the
workman be dismissed.
16. Detailed final arguments have been heard from both sides. File
has been thoroughly perused.
17. The issue-wise finding of this Court are as under:-
ISSUE NO. 1
(i) Whether services of workman were terminated
by the management is illegal and or unjustified
manner due to his conviction in a criminal case?
OPW
18. The onus to prove this issue was on the workman.
19. The factual matrix surrounding the registration of FIR
No.08/04 at P.S. Baghpat, UP against the workman on 08.01.2004
has already been mentioned at the outset. In the instant case, it is
undisputed fact that after trial of the abovesaid case registered
against the workman vide FIR No.08/04 u/S 307/325/323/452/506
IPC at P.S. Baghpat, UP, the workman was convicted for offences
u/S 307/323/325/452/506 IPC vide judgment dated 12.01.2007 of
Ld. ASJ, FTC-I, District Court Baghpat, UP and therein the
workman was sentenced for imprisonment for 5 years u/S 307/34
IPC, six months imprisonment for offence u/S 323/34 IPC, for three
years of imprisonment for offence u/S 325/34 IPC, three years of
imprisonment for offence u/S 452 IPC and one year imprisonment
for u/S 506 IPC. It is also not disputed fact that after the
management came to know about conviction of the workman in the
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aforesaid case for offences u/S 307/25/323/452/506 IPC,
management had served a show cause notice dated 06.06.2007
Ex.MW1/10 upon the workman calling upon him to make
representation against decision of the Disciplinary Authority to
impose proposed penalty under Rule 19 CCS (CCA) Rules, 1965 of
his removal from service as Disciplinary Authority, after taking into
account the gravity of criminal charges against him, considered
that he was not fit to be retained in service and thereafter the
Disciplinary Authority had removed him from service vide order
dated 16.01.2008.
20. The workman has challenged his termination vide
removal order dated 16.01.2008 as illegal, bad, unjust and mala fide
on following grounds:-
(a) That the workman aforesaid has not committed any
misconduct of any kind whatsoever and as such he cannot be
terminated in the manner it has been done.
(b) That no charge sheet was issued to the workman
concerned and no domestic enquiry was conducted against him.
Infact, the capital punishment of dismissal was imposed upon him
without providing him any opportunity of being heard.
(c) That at time of incident in question, the workman
aforesaid was on duty in School upto 6.30 p.m. and he reached his
village at around 8.30 p.m. and therefore, the workman aforesaid
was at far away place from the place of incident at the time of
incident and hence he cannot be implicated for the allege offence by
any stretch of imagination.
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(d) Because the workman aforesaid has been wrongly
convicted vide order dated 12.01.2007 passed by the Ld. Trial
Court at Baghpat and consequently he filed an appeal before
Allahabad High Court in the same month which has been admitted
for hearing and the workman concerned has been released on bail.
(e) That it would be relevant to mention here that the time
of fighting in the village was 5 O'Clock an at that point of time the
workman concerned was on his duty at far away place.
(f) That even otherwise the management aforesaid has no
right at all to impose a capital punishment of dismissal without
providing the workman concerned due opportunity of being heard.
Infact the said termination is in complete violation of principles of
natural justice.
(g) That even otherwise the charges leveled against the
workman are totally false, wrong and without any base.
(h) That the said Order of dismissal /termination is bad in
law was the management has not applied its mind judiciously to the
material on record before passing the impugned Order.
i) That the said Order of termination is bad in law as it
amounts to Unfair Labour Practice and victimization.
j) That the said Order of termination is even otherwise
bad in law and liable to be quashed.
21. The management, on other hand, has asserted that in
terms of CCS Rules, workman was under 'deemed' suspension vide
order dated 18.3.2004 Ex. MW1/M2, during the period when he
was in custody in FIR No.08/2004, PS Baghpat, UP from
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28.01.2004 till 19.03.2004 and this suspension was revoked on
13.07.2005 and thereafter a show-cause notice dated 29.04.2006
Ex. MW1/M5 was issued to workman asking him to give reasons
within 7 working day of receipt thereof, as to why he should not be
charge-sheeted under Rule 14 of CCS (CCA) Conduct Rules 1965,
but workman had failed to give any reply within 7 days. The
management has contended that since subsequently workman was
convicted and sentenced to imprisonment for five years vide
judgment dated 12.01.2007 in FIR No. 08/2004 of PS Baghpat,
U.P., the management had sent show cause notice dated 12.02.2007
Ex.MW1/8 to workman seeking his explanation regarding his
unauthorized absence from duty since 11.01.2007 and subsequently,
the management had issued show cause notice dated 06.06.2007
Ex.MW1/10 to workman, calling upon workman to give reasons
why penalty of removal from service under Rule 19 of CCS (CCA)
Rules should not be awarded to him. The management has asserted
that vigilance Branch of management has conducted inquiry and
granted opportunity to workman vide show cause notice dated
06.06.2007 as to why penalty under Rule 19 of CCS /CCA Rules,
1965 of his removal from service should not be imposed on him,
but workman had failed to give his reply/representation to above-
said show cause notice within 15 days, therefore, the Disciplinary
Authority had removed the workman from service vide order dated
16.01.2008.
22. The management has pointed out in its reply that the
claim of the workman is not maintainable as appeal filed by
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workman against his dismissal order dated 16.01.2008 before the
Appellate Authority, that is, Secretary, Department of Education,
GNCT of Delhi was also dismissed by the Appellant Authority by
holding that there was no irregularity in the order as the same was
in accordance with the rule and procedures as laid down under the
CCS Rules. The management has further contented that the claim of
the workman is not maintainable as the workman had earlier filed
the similar claim before the ALC, Ashok Vihar, Nimri Colony,
Delhi in the year 2012 vide ID No. 243/ND/CO-II/11/2720,
wherein the management had filed its reply, however, the workman
has now filed a fresh statement of claim on the same fact and
grounds.
23. The first ground of challenge taken by workman in his
statement of claim against his dismissal order dated 16.01.2008 is
that the he had not committed any 'misconduct' of any kind
whatsoever and as such he cannot be terminated in the manner it
has been done.
24. During the course of arguments, Ld. AR for the
workman has contended that the alleged 'misconduct' for which
workman has been convicted in FIR No. 08/2004, PS Baghpat, U. P
u/s 307/34, 323/34, 325/34, 452 & 506 IPC was not committed
during course of his duty and therefore, it shall not be covered
under rule 14 & 19 of Central Civil Services CCS (CCA) Rules,
1965, so as to warrant his termination from services and he has
placed reliance on judgment of Krishna Kutty vs Senior
Superintendent of Post Office & Ors MANU/KE/ON5/1975 and
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Preeti Devi Tiwari vs Union of India & Ors MANU/CG/1031/1021
to buttress his claim that conduct which is not a 'misconduct' as per
Rules, committed in course of employment , cannot be basis of
departmental action under Rule 19 CCS (CCA) Rules.
25. Before proceeding with factual analysis of present
case, it is important to analysis statutory provisions and judicial
precedents in this regard. Rule 19 of CCS (CCA) Rules reads as
under:-
19 Special procedure in certain cases
Notwithstanding anything contained in rule 14 to rule
18-
(i) where any penalty is imposed on a Government
servant on the ground of conduct which has led to his
conviction on a criminal charge, or
(ii) where the disciplinary authority is satisfied for
reasons to be recorded by it in writing that it is not
reasonably practicable to hold an inquiry in the manner
provided in these rules, or
(iii) where the President is satisfied that in the interest
of the security of the State, it is not expedient to hold
any inquiry in the manner provided in these rules,
the disciplinary authority may consider the
circumstances of the case and make such orders
thereon as it deems fit:
Provided that the Government servant may be given an
opportunity of making representation on the penalty
proposed to be imposed before any order is made in a
case under clause (i):
Provided further that the Commission shall be
consulted, where such consultation is necessary, before
any orders are made in any case under this rule.
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26. It has been settled through judgments that conviction
for offence is sufficeint proof of misconduct and in this regard, it is
relevant to refer to judgment of Hon'ble High Court of Delhi in
BSES Rajdhani Power Limited vs Madan Mohan Ratawal & Anr
LPA No. 1367/2007 decided on 30.03.2009, wherein Hon'ble High
Court of Delhi while discussing nature and scope of Rule 19(2) of
CCS (CCA) Rules, has placed reliance on judgment of Division
Personnel Officer, Southern Railway, Vs. T. R. Chllapan (1976) 3
SCC 190, wherein Hon'ble Supreme Court of India while examing
Article 311 (2) & 3 had observed in para 21:
"It is obvious that in considering this matter the disciplinary
authority will have to take into account the entire conduct
of the delinquent employee, the gravity of the misconduct
committed by him, the impact which his misconduct is
likely to have on the administration and other extenuating
circumstances or redeeming features if any present in the
case and so on and so forth. It may be that the conviction of
an accused may be for a trivial offence as in the case of the
respondent T.R. Chellappan in Civil Appeal No. 1664 of
1974 where a stern warning or a fine would have been sufficient to meet the exigencies of service. It is possible that the delinquent employee may be found guilty of some technical offence, for instance, violation of the transport rules or the rules under the Motor Vehicles Act and so on, where no major penalty may be attracted. It is difficult to lay down any hard and fast rules as to the factors which the disciplinary authority would have to consider, but I have mentioned some of these factors by way of instances which are merely illustrative and not exhaustive. In other words, the position is that the conviction of the delinquent employee would be taken as sufficient proof of misconduct and then the authority will have to embark upon a summary inquiry as to the nature and extent of the penalty to be imposed on the delinquent employee and in the course of the inquiry if the authority is of the opinion that the offence is too trivial or of a technical nature it may refuse to impose any penalty in spite of the conviction. This is a very salutary provision which has been enshrined in these Rules and one of the purposes for conferring this power is that in LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 16 /44 cases where the disciplinary authority is satisfied that the delinquent employee is a youthful offender who is not convicted of any serious offence and shows poignant penitence or real repentance he may be dealt with as lightly as possible."
27. Further, there is categorical observation of Hon'ble Supreme Court of India in aforesaid judgment of Division Personnel Officer, Southern Railway Vs. T. R. Chllapan (Supra) that proviso (a) of Article 311 (2), dispenses with 3 steps of departmental enquiry when an employee is convicted on a criminal charge and that 'once delinquent employee has been convicted of a criminal offence that should be treated as sufficient proof of his misconduct and that conviction may be for trivial offence or offence which is technical in nature or of serious offence and clearly there is no distinction drawn by Hon'ble Supreme Court of India in aforesaid judgment on the ground of nature of offence or whether the offence was committed in course of employment or outside it. Rule 19 CCS (CCA) Rules 1965 incorporates the principles contained in Article 311 (2) proviso (a) of Constitution of India and therefore, ratio of judgment of Hon'ble Supreme Court of India in Division Personnel Officer, Southeren Railway vs T. R. Challapan (Supra) shall squarely apply to facts of present case. Accordingly, distinction of misconduct committed within course of employment and misconduct committed outside course of employment, is not relevant for departmental inquiry in terms of Rule 19 CCS (CCA) Rules 1965. Moreover, Rule 19 of CCS (CCA) Rules, 1965 is itself clear that it applies where 'conduct' of employee had led to his LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 17 /44 conviction, without any word qualifying the term 'conduct' itself. Therefore, in terms of judgment of Hon'ble Supreme Court of India in Division Personnel Officer, Southern Railway, Vs. T. R. Challapan (Supra), it is immaterial whether misconduct was minor or serious offence and similarly no distinction regarding nature of offence whether they were committed during course of employment or outside course of his employment can be made out. Thus Rule 19 CCS (CCA) Rules,1965 shall be applicable in case of workman herein. Therefore, this ground of objection of workman is legally unsustainable.
28. The second ground of objection taken by the workman in his statement of claim is that no charge sheet was issued to the workman concerned and no domestic enquiry was conducted against him and that the capital punishment of dismissal was imposed upon him without providing him any opportunity of being heard.
29. In this regard, the management witness MW1 Sh. Bijesh Kumar Sharma has admitted during his cross-examination in the present case that no inquiry against the workman was conducted before issuance of his termination order dated 16.01.2008 and that no charge-sheet or memo was issued to workman, before dismissing him from service. The management has asserted that no Departmental Inquiry was required to be conducted in the present case as the 'conduct' of the workman which led to his conviction by judgment dated 12.01.2007 delivered by Court, was sufficient to invoke provision of Rule 19 (1) CCS (CCA) Rules, 1965 against LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 18 /44 him as the workman was convicted by aforesaid judgment for offences u/S 307/325/323/452/506 IPC in FIR No.08/04 of PS Baghpat, UP by Court of Ld. ASJ, FTC-I, District Court Baghpat, UP.
29. It is settled principle of law that Rule 19 CCS (CCA) Rules, 1965 is in nature of exception to the general Rules laid down in Rules 14 -18 of CCS (CCA) Rules and thus, Rule specifically empowers the Disciplinary Authority to impose penalty upon delinquent, without any requirement of holding inquiry or serving the employee with charge-sheet and in compliance of Rule 19 CCS (CCA) Rules, 1965 the management had issued show-cause notice dated 06.06.2007 Ex. MW1/10 upon the workman calling upon him to make representation, if any, against the proposed penalty of his removal from service, which Disciplinary Authority intended to impose upon him under Rule 19 CCS (CCA) Rules and in his letter dated Ex.WW1/5, workman has categorically admitted that he had received show cause notice dated 06.06.2007 of the management on 02.07.2007. Thus, clearly the management had afforded opportunity to the workman to make representation against the proposed penalty, which the Disciplinary Authority intended to inflict upon him, in terms of Rule 19 CCS (CCA) Rules by serving upon his show cause notice dated 06.06.2007 Ex.MW1/10 and this Court accordingly, holds that management had lawfully invoked Rule 19 (1) CCS (CCA) Rules 1965 and had complied with letter and spirit and therefore, this ground of objection is also meritless.
LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 19 /4430. The third, fifth and seventh grounds of challenge taken by the workman against his order of removal dated 16.01.2008 pertains to propriety, legality and factual correctness of judgment dated 12.01.2007 vide which he was convicted and sentenced in FIR No.08/04 by Ld. ASJ, FTC-I, District Court Baghpat, UP and these grounds are the same objections which the workman had taken during the trial of the aforesaid FIR No.08/04 before the Ld. Presiding Officer and were considered and adjudicated upon by Ld. ASJ, FTC-I, District Court Baghpat, UP in his detailed judgment dated 12.01.2007 and admittedly, appeal before Hon'ble Allahabad High Court has already been filed by the workman challenging the aforesaid judgment dated 12.01.2007, which is pending before Hon'ble Allahabad High Court. Thus, since the legality and correctness of the aforesaid judgment dated 12.01.2007 in FIR No.08/04, P.S. Baghpat, UP is already sub judice before Hon'ble Allahabad High Court, therefore, in line with judicial propriety and discipline, this Court does not proceed to delve upon the aforesaid grounds of challenge.
31. The fourth ground of challenge taken by the workman in his statement of claim is that he had been wrongly convicted vide order dated 12.01.2007 passed by the Ld. Trial Court at Baghpat and consequently he filed an appeal before Allahabad High Court in the same month which has been admitted for hearing and he was released on bail. It is settled principle of law that there is difference between suspension of sentence and stay of conviction and mere filing and admission of an appeal or even grant of bail/suspension LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 20 /44 of sentence does not obliterate the judgment of conviction and reliance in this regard is placed on the judgment of BSES Rajdhani Power Ltd. vs. Madan Mohan Patawal & Anr (Supra) , wherein it was held that "an order suspending the sentence does not affect order of conviction and conviction does not cease to be operative and it only has effect of releasing the accused on bail."
32. The relevant extract of aforesaid judgment is reproduced here:-
17. "An order suspending the sentence does not affect the order of conviction and the conviction does not cease to be operative. It only has the effect of releasing the appellant accused on bail. However, stay of conviction, which is rare and an exception, has the effect of staying the conviction itself, i.e., the conviction will not be operative from the date of the stay, though this by itself does not render the conviction or the judgment non-existent. The order of conviction cannot be given effect to (Ravikant S. Patil Vs Sarvabhouma S. Bagali, reported in JT 2006 (10) SC 578. Drawing this distinction, the Supreme Court in alsai Vs. Nirmal Sinha, reported in (2007) 9 SCC 330 has that once an order staying the conviction is passed, it makes the conviction non-operative and, therefore, in such cases the accused is not disqualified from contesting elections on the ground that he has been convicted".
33. Further, in Shree Chamundi Mopeds Limited Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, (1992) 3 SCC it was held that :
"An order for stay does not mean that the judgment under appeal is wiped out from its existence nor do the disposed of proceedings get revived before the appellate authority. Quashing or setting aside an order or judgment results in restoration of the position as it stood on the date prior to passing of the impugned judgment. But once the appellate court passes an order staying the conviction, the said stay order has to be given effect to and the departmental authorities cannot ignore and proceed on the basis that the officer stands LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 21 /44 convicted by the lower Court. Conviction order, its implementation and consequences stand stayed."
34. Thus, suspension of sentence of workman and his consequential release on bail, in terms of order of Hon'ble Allahabad High Court, shall not have effect of obliteration of conviction and since legality and correctness of judgment dated 12.01.2007 in FIR No.08/04, PS Baghpat, UP is sub-judice before Hon'ble Allahabad High Court, therefore, this ground of objection also fails.
35. The sixth ground of objection taken by the workman in his statement of claim against order dated 16.01.2008 is two fold that the management had imposed disproportionate punishment equivalent to capital punishment of his dismissal from service and secondly, that penalty of removal from service was imposed on him, without providing him due opportunity of being heard and therefore his removal from service is in complete violation of principles of natural justice. The workman has contended that he was terminated by management on 16.01.2008, without being heard and without any opportunity to make representation against proposed penalty before Disciplinary Authority, in his defence. The management has claimed that it had issued show cause notice dated 06.06.2007 Ex.MW1/10 to workman to afford opportunity to him to make representation within 15 days of its receipt, against decision to impose penalty of his removal from service under Rule 19 of CCS (CCA) Rules. During his cross-examination, the workman had denied that he had received abovesaid show cause notice dated 06.06.2007 of management. However, contrary to his claim that he LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 22 /44 had not received show cause notice dated 06.06.2007, the workman had stated in his evidence affidavit Ex.WW1/A that he had sent a reply/application dated 06.07.2007 Ex.WW1/5 to Director of Education, NCT of Delhi and perusal of this letter Ex.WW1/5 shows that the workman has clearly admitted therein that he had received show cause notice dated 06.06.2007 of management on 02.07.2007. The workman has fairly conceded in his evidence affidavit Ex WW1/A that he had sent his application dated 06.07.2007 Ex.WW1/5 to the Directorate of Education, NCT of Delhi, Delhi. Thus, there is clear admission of workman in his own document Ex.WW1/5 that he had received show-cause notice dated 06.06.2007 from management on 02.07.2007.
36. Now, the perusal of order dated 16.01.2008 Ex. MW1/14 of Disciplinary Authority shows that Disciplinary Authority had stated therein that workman had not submitted any representation to show cause notice dated 06.06.2007 even after expiry of time period granted to him, though workman has claimed that he had sent his application dated 06.07.2007 Ex.WW1/5 to management in response to show-cause notice dated 06.06.2007. Now contrary to the version of the management in its order dated 16.01.2008 Ex.MW1/14, the management witness MW1 Bijesh Kumar Sharma has admitted in his cross-examination before Court that management had received the representation dated 06.07.2007 Ex.WW1/5 from the workman. Thus, in view of the categorical admission of MW1 Bijesh Kumar Sharma that representation/ letter dated 06.07.2007 Ex.WW1/5 of the workman was received by LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 23 /44 management, the failure of the Disciplinary Authority to even acknowledge the receipt of the aforesaid letter as well as to consider it before issuance of order dated 16.01.2008 Ex.MW1/14 renders the said order dated 16.01.2008, bad in eyes of law. It is to be noted that even if said reply dated 06.07.2007 Ex.WW1/5 of workman was sent after lapse of considerable time, yet without sufficient reasons, it cannot be discarded or kept out of consideration. Moreover, order dated 16.01.2008 of management does not even acknowledge receipt of this representation/letter dated 06.07.2007 Ex.WW1/5 from workman and therefore, order dated 16.01.2008 passed by Disciplinary Authority removing the workman from service is apparently violative of principles of natural justice, as it has been passed without taking into consideration the representation/letter dated 06.07.2007 Ex.WW1/5 of workman.
37. The second limb of this objection is that punishment of removal from service imposed on the workman vide order dated 16.01.2008 by Displinary Authority is disproportionate, excessive and in nature of capital punishment. It has been contended by AR of the workman that workman has unblemished service record of almost 36 years with the management and that he had dutyfully served the management since 31.05.1972, till his illegal removal from service on 16.01.2008. The management witness MW1 Bijesh Kumar Sharma has admitted during his cross-examination that service record of the workman with the management is unblemished. MW1 Bijesh Kumar Sharma has admitted in his testimony that dismissal/removal from service is a harshest LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 24 /44 punishment that can be imposed on any employee by the management. MW1 Sh. Bijesh Kumar Sharma also admitted during cross-examination that the conviction of the workman in FIR No.08/04, PS Baghpat, UP was the sole incident on the basis of which his services were terminated by way of dismissal and that the aforesaid FIR has no connection with the employment of the workman in the management.
38. On the question of proportionality of penalty to alleged misconduct, it is relevant to refer to the judgment of Hon'ble Supreme Court of India in V. Ramana VS A.P. SRTC And Others (2005) SCC 338 wherein Hon'ble Supreme Court of India has referred to the verdict of Hon'ble Supreme Court in Union of India Vs. G. Ganyutham" (1997) 7 SCC 463, wherein it has been observed that:-
"31. The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. (2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 25 /44 outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out.
(3)(a) As per Bugdaycay (1987 AC 514), Brind (1991 (1) AC 696) and Smith (1996 (1) All ER 257) as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find 0out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14.
39. It has been observed by Hon'ble Supreme Court of India in V. Ramana Vs. A. P. SRTC and others (Supra), that :-
"11. The common thread running through in all these decision is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural improperity or was shocking to the LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 26 /44 conscience of the Court, in the sense in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the adminstrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision."
"12. To put differently unless the punishment imposed by the Disciplinary Authority or the Appellant Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproprotionate it would be appropriate to direct the Disciplinary Authority or the Appellaate Authority to reconsider the penalty imposed", which brings forth thus categorically that the scope of the judicial review in matters such as that instant is limited to the deficiency in the deceision making process by the adminstrator and not to the decision and that if the punishment imposed is found to be shocking disproportinoate, it would be appropriate to direct Disciplinary Authority or the Appellate Authority to re- consider the penalty imposed in the normal course.
40. The plea taken by Ld. AR for the workman that punishment of termination of services of workman by way of his removal from service vide order dated 16.01.2008 of Disciplinary Authority, is grossly excessive and disproportionate as the offences were not related to the employment of the workman in the management and that the Disciplinary Authority had failed to take note of his unblemished service record of 36 years with the management. This plea of the workman has to be considered alongwith eighth ground of objection taken by the workman in his statement of claim that order dated 16.01.2008 of his removal from service is bad in law as the management has not applied its mind judiciously to the material on record before passing the impugned LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 27 /44 Order. Ld. AR for the workman has argued during course of final arguments that Disciplinary Authority had not applied its mind as it had not perused the entire copy of judgment dated 12.01.2007 of the Court of Ld. ASJ, FTC-I, District Court, Baghpat, UP in FIR No.08/04, PS Baghpat, UP and it has considered only 2 pages which is Ex.MW1/15, which is order on sentence in said FIR No.08/04, PS Baghpat, UP and failed to consider other relevant factors.
41. In this regard it is relevant to note that Rule 19 (2) CCS (CCA) Rules provides guidelines in this regard as under:-
"(2) Action on conviction.-- (a) On a criminal charge.--The following principles should apply in regard to action to be taken in cases where Government servants are convicted on a criminal charge:-
(i) In a case where a Government servant has been convicted in a Court of Law of an offence which is such as to render further retention in public service of a Government servant prima facie undesirable, the Disciplinary Authority may, if it comes to the conclusion that an order with a view to imposing a penalty on the Government servant on the ground of conduct which had led to his conviction on a criminal charge should be issued, issue such an order without waiting for the period of filing an appeal, or, if an appeal has been filed, without waiting for the decision in the first Court of appeal.
Before such an order is passed, the Union Public Service Commission should be consulted where such consultation is necessary.
(ii) As soon as a Government servant is convicted on a criminal charge, he may, in appropriate cases, be placed under suspension, if not already suspended.
(iii) In a case where the conviction is not for an offence of the type referred to in sub-
paragraph (i) above, the Disciplinary Authority should call for and examine a copy of the judgment with a view to decide on taking such further departmental action, as might be deemed appropriate."
LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 28 /4442. The pleas raised by the workman in the present case that the mitigating factors in respect of his case, including his, unblemished service record of 36 years, was not considered by Disciplinary Authority in this case and that the penalty of removal from service inflicted on him is grossly disproportionate given the factual matrix as well as due to non-consideration of all extenuating and redeeming factors by the Disciplinary Authority, merits consideration. It is relevant to note that the Hon'ble Apex Court in Shankar Das Vs. Union of India, 1985 (2) (SCR) 358 has made observations about the requirement of a fair, just and reasonable exercise of the power to dismiss a person from service on the ground of conduct leading to conviction on a criminal charge. In Union of India Vs. Tulsiram Patel (1985) 3 SCC 398, five Judges Bench of the Supreme Court has discussed the guiding principles for dispensing with enquiry in case of conviction and other special circumstances and in furtherance thereto Government of India, Department of Personnel and Training has issued OM No. 11012/11/85--Estt. (A), dated the 11th November, 1985 and 4th April, 1986 and it is quoted at sl. no.1 after Rule 19 of CCS (CCA) Rules 1965 which states as under :-
"(1) Scope of second proviso to Article 311 (2) of the Constitution :- The judgment delivered by the Supreme Court on 11.07.85 in the case of Tulsi Ram Patel and others has been the cause of much controversy. The apprehension caused by the judgment is merely due to an inadequate appreciation of the point clarified in this judgment and in the subsequent judgement of the Supreme Court delivered on September 12, 1985 in the case of Satyavir Singh and others (Civil Appeal No. 242 of 1982 and Civil Appeal No. 576 of 1982). It is, therefore, imperative to clarify the issue for the benefit and guidance of all concerned.LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 29 /44
2. In the first place it may be understood that the Supreme Court in its judgment has not established any new principle of law. It has only clarified the constitutional provisions, as embodied in Article 311 (2) of the Constitution. In other words, the judgment does not take away the constitutional protection granted to government employees by the said Article, under which no government employee can be dismissed, removed or reduced in rank without an inquiry in which he has been informed of the charges against him and given a reasonable opportunity to defend himself. It is only in three exceptional situations listed in clauses (a), (b) and (c) of the second proviso to Article 311 (2) that the requirement of holding such an inquiry may be dispensed with.
3. Even under these three exceptional circumstances, the judgment does not give unbridled power to the competent authority when it takes action under any of the three clauses in the second proviso to Article 311 (2) of the Constitution or any service rule corresponding to it. The competent authority is expected to exercise its power under this proviso after due caution and considerable application of mind. The principles to be kept in view by the competent authority while taking action under the second proviso to Article 311 (2) or corresponding service rules have been defined by the Supreme Court itself. These are reproduced in the succeeding paragraphs for the information, guidance and compliance of all concerned.
4. When action is taken under clause (a) of the second proviso to Article 311 (2) of the Constitution or rule 19 (1) of the CCS (CC&A) Rules, 1965 or any other service rule similar to it, the first pre-requisite is that the disciplinary authority should be aware that a Government servant has been convicted on criminal charge. But this awareness alone will not suffice. Having come to know of the conviction of a Government servant on a criminal charge, the disciplinary authority must consider whether his conduct, which had led to his conviction, was such as warrants the imposition of a penalty and if so, what that penalty should be. For that purpose, it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case. In considering the matter, the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features. This however, has to be done by the disciplinary authority by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was blameworthy and punishable, it must decide upon the LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 30 /44 penalty that should be imposed on the Government servant. (The position has been undergone a change with incorporation of first proviso to Rule 19, which may be kept in view).
This too has to be done by the disciplinary authority by itself. The principle, however, to be kept in mind is that the penalty imposed upon the civil servant should not be grossly excessive or out of all proportion to the offence committed or one not warranted by the facts and circumstances of the case.
5. After the competent authority passes the requisite orders as indicated in the preceding paragraph, a Government servant who is aggrieved by it 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 person who was in fact, convicted, he can also agitate this question in appeal, revision or review. If he fails in all the departmental remedies available to him and still wants to pursue the matter, he can seek judicial review. The court (which term will include a Tribunal having the powers of a court) will go into the question whether impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed, or not warranted by the facts and circumstances of the case or the requirements of the particular service to which the government servant belongs."
44. Thus, in terms of the aforesaid OM No. 11012/11/85-- Estt. (A), dated the 11th November, 1985 of Department of Personnel and Training, Government of India, in present case the Disciplinary Authority while passing order in its show-cause notice dated 06.06.2007, proposing the quantum of punishment of removal from service which it intended to impose on the workman, was required to examine the points indicated in para no.4 of the aforesaid OM No.11012/11/85--Estt. (A), dated the 11 th November, 1985. Perusal of the show-cause notice dated 06.06.2007 shows that the instructions contained in aforeaid para no.4 of the aforesaid OM LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 31 /44 No.11012/11/85--Estt. (A), dated 11.11.1985 has not been followed while deciding on the quantum of proposed punishment to be imposed on the workman. Firstly, from perusal of the show cause notice dated 06.06.2007 Ex.MW1/10, it is clear that Disciplinary Authority was required to peruse the entire judgment dated 12.01.2007 in FIR No.08/04, PS Baghpat, UP to consider conduct of workman to decide if his conduct warrants imposition of penalty, at all. However, MW1 Bijesh Kumar has fairly conceded that management had considered Ex.MW1/15, which is copy of order on sentence (running in 2 pages) delivered in judgment dated 12.01.2007 in FIR No.08/04, PS Baghpat, UP and thus clearly the entire judgment dated 12.01.2007 in aforesaid case was not considered by Disciplinary Authority before issuing removal order dated 12.01.2008. The Disciplinary Authority, as per this OM No.11012/11/85--Estt. (A), dated the 11th November, 1985 was also required to consider the extenuating circumstances or redeeming features but clearly there is nothing on record to show these factors have been considered. Thus, it appears that the said show-cause notice dated 06.06.2007 Ex.MW1/10 has been issued mechanically by management, without proper application of mind and is therefore, in violation of abovesaid OM No. 11012/11/85--Estt. (A), dated the 11th November, 1985 as well as in violation of principles of natural justice.
45. It is also relevant to note that the Hon'ble Delhi High Court in case of BSES Rajdhani Power Limited vs Madan Mohan Ratawal & Anr LPA No. 1367/2007 decided on 30.03.2009, has LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 32 /44 discussed the scope and application of Rule 19 (2) CCS (CCA) Rules 1965 and the relevant extract of the aforesaid judgment is being reproduced herein :-
"The said Rule empowers the Disciplinary Authority to impose penalty on a Government servant on the ground of conduct, which has led to his conviction on a criminal charge. What is required to be examined by the Disciplinary Authority is whether the conduct of the Government servant that has led to his conviction on the criminal charge, warrants punishment of dismissal from service on the ground that retaining the public servant in Government service is undesirable. It is not mandatory for Disciplinary Authority to dismiss a Government servant convicted on a criminal charge. The conduct of the officer which has led to his conviction has to be examined and a considered decision taken. This is clear from sub-clause (iii) which refers to conviction of a Government servant for an offence of the type not referred in sub-clause (i), i.e., for an offence which would render further retention of public servant undesirable. In such cases, further departmental action as may be deemed appropriate can be initiated. Thus, Rule 19 (2) is an enabling provision, which requires the Disciplinary Authority to consider, examine and come to the conclusion, after application of mind and considering the entire circumstances of the case, whether the employee should be dismissed from service in view of the conviction or any further departmental action should be taken. In a given case upon conviction, the Government servant in question may be suspended if he is not already suspended, or dismissed or departmental action may be
46. Further, in BSES Rajdhani Power Limited vs Madan Mohan Ratawal & Anr (Supra), Hon'ble High Court of Delhi has further held that the Disciplinary Authority while exercising powers under Rule 19 (2) CCS (CCA) Rules, 1965, have to satisfy the requirements mentioned therein i.e. the Disciplinary Authority has to apply its mind and furnish reasoning or the grounds on the basis of which it has come to the conclusion as to why and for what reasons the conduct of the workman justify his removal from LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 33 /44 service, and the relevant extract of the aforesaid judgment on this point is reproduced herein:-
"The above order passed by the Disciplinary Authority does not meet and satisfy the requirement of Rule 19 (2) of the CCS (CCA) Rules. There is no reasoning or ground given by the Disciplinary Authority to come to the conclusion why and for what reason conviction of the respondent and the conduct justified his order of removal. The order does not show application of mind by the Disciplinary Authority for imposing the said punishment. The Disciplinary Authority was required to apply his mind to the allegations made, the order of conviction and the stand taken by the respondent including the decree of divorce by mutual consent and reach a conclusion that in view of the conviction, the conduct merits penalty or removal. We are not stating that the order of removal could not or should not have been passed in the present case. The Disciplinary Authority could have on the basis of material reached the said conclusion and finding, but Disciplinary Authority has failed to elucidate and disclose the basis and reasoning for his conclusion and thus there is a jurisdictional error in the order passed by the Disciplinary Authority for failure to deal with the contentions raised and give his reasoning and grounds. The said error relates to the decision making process and is, therefore amenable to judicial review.
47. Evidently, the order dated 16.01.2008 Ex.MW1/14 of removal of workman from service is absolutely silent on reasons or grounds as to why conduct and conviction of workman, justified his removal from service. The Disciplinary Authority in its show cause notice dated 06.06.2007 Ex.MW1/10 as well as while removing the workman vide order of removal dated 16.01.2008 had failed to take into consideration, particular facts of the case which led to conviction of workman vide judgment dated 12.01.2007 in FIR No.08.04, PS Baghpat, UP by taking into account (i) entire conduct of workman (ii) impact which his misconduct is likely to have on administration (iii) other extenuating or redeeming features and this LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 34 /44 was condition precedent to exercise of power to impose punishment on workman of his removal from service. But order dated 16.01.2008 of management of removal of workman from service is silent on these aspects and does not show consideration of conduct of workman which led to his conviction in FIR No.08/04, PS Baghpat, UP.
48. The Hon'ble Supreme Court of India in V. Ramana VS A.P. SRTC And Others (2005) SCC 338 has referred to law laid down by the Hon'ble Supreme Court in B.C. Chaturvedi v. Union of India and Ors. (1995) 6 SCC 749) wherein it has been observed:-
"The High Court/Tribunal, while exercising the 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 cases, impose appropriate punishment with cogent reasons in support thereof."
48. It has been observed by Hon'ble Supreme Court of India in V. Ramana Vs. A. P. SRTC and others (Supra) read as under:-
"11. The common thread running through in all these decision is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural improperity or was shocking to the conscience of the Court, in the sense in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the adminstrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision."
"12. To put differently unless the punishment imposed by the Disciplinary Authority or the Appellant Authority shocks the conscience of the Court/ Tribunal , there is no scope for LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 35 /44 interference. Further to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproprotionate it would be appropriate to direct the Disciplinary Authority or the Appellaate Authority to reconsider the penalty imposed", which brings forth thus categorically that the scope of the judicial review in matters such as that instant is limited to the deficiency in the deceision making process by the adminstrator and not to the decision and that if the punishment imposed is found to be shocking disproportinoate, it would be appropriate to direct Disciplinary Authority or the Appellate Authority to re-consider the penalty imposed in the normal course.
49. The ninth and tenth ground of objection raised by the workman in his statement of claim are that the said order of termination is bad in law as it amounts to Unfair Labour Practice and victimization and that the said order of termination is even otherwise bad in law and liable to be quashed. It is to be noted that this Court has already observed hereinabove that order dated 16.01.2008 is also bad in law because it fails to even acknowledge and consider the representation dated 06.07.2007 Ex.WW1/5 of workman, though management witness MW1 Sh. Bijesh Kumar Sharma had admitted in his cross-examination that management had received the said representation dated 06.07.2007 from workman. Thus, order dated 16.01.2008 is illegal and arbitrary and cannot be sustained.
50. In view of forgoing discussions and observations, this Court is of considered opinion that the Disciplinary Authority has failed to apply its mind and furnish proper reasoning as well as the grounds in its show cause notice dated 06.06.2007 Ex.MW1/10 as well as in its order dated 16.01.2008 Ex.MW1/14 vide which, LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 36 /44 workman was removed from service as it had failed to consider representation of workman as well as entire conduct and other redeeming facts to come to the conclusion as to why and for what reasons the conduct of the workman justified his removal from service.
Thus, in view of foregoing observations, issue no.1 is decided in favour of the workman and against the management.
ISSUE No. 3Whether the workman himself is guilty of unauthorized absentism by remaining absent from his duty without any prior permission or sanction? OPW
51. The onus to prove this issue was on management.
52. The management has contended in its reply that workman was unauthorizedly absent from duty with effect from 11.01.2007 and, therefore, management had issued show cause notice dated 12.02.2007 to the workman calling upon him to explain reasons for his unauthorized absence from duty. MW1 Sh. Bijesh Kumar Sharma has also deposed on the same lines in the evidence affidavit Ex.MW1/A and relied on copy of notice 12.02.2007, Ex. MW1/8 in support of his contention.
53. The workman, on the other hand, has stated on solemn affirmation in his evidence affidavit, Ex. WW1/A, that he was convicted in FIR No. 08/04 PS Baghpat, UP vide judgment dated 12.01.2007 of Ld. ASJ/FTC-I, District Court, Baghpat, UP for offences u/s 307/325/323/34 IPC and Section 452/506 IPC and he LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 37 /44 was taken in custody in the aforesaid case and he continued to be in custody, till he was released on bail, subsequent to order of Hon'ble Allahabad High Court in appeal filed by him against aforesaid judgment dated 12.01.2007 before the Hon'ble Allahabad High Court.
54. It is pertinent to note that management witness MW1 Sh. Bijesh Kumar Sharma in para 8 of his evidence affidavit, Ex. MW1/A, categorically conceded that workman was imprisoned w.e.f 12.01.2007, after being convicted in FIR No. 08/04 PS Baghpat UP and that workman was sent to jail in the aforesaid case w.e.f.12.01.2007 and he was released from jail only on 16.02.2007. Thus, the management itself has not disputed the version of the workman that absence of workman from duty during the period from 12.01.2007 till 16.02.2007 was on account of the fact that he was in custody pursuant to judgment dated 12.01.2007 of Ld. ASJ/FTC-I, District Court, Baghpat, UP in FIR No.08/04, PS Baghpat, UP, for offences u/s 307/325/323/34 IPC and Section 452/506 IPC and thus the workman has been able to furnish satisfactory justification as well as explanation for his inability to attend his duties for the said period as he was lodged in jail under the directions of Court and therefore, the inability of the workman to attend his duties during the abovesaid period cannot be said to be deliberate and intentional absence from duty so as to bring it within ambit of 'unauthorized absence' from duty.
LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 38 /4455. Accordingly, in view of aforesaid discussion and observations, issue no.3 is decided against the management and in favour of the workman.
ISSUE NO.2 If the answer to the aforesaid issue is in affirmative then as to what consequential relief is the workman entitled for ? OPW AND ISSUE NO.4 RELIEF
56. This Court deems it fit to consider and adjudicate upon issue no.2 and issue no. 4 together as they are inter-related.
57. Onus to prove the issue no.2 is upon the workman.
58. The workman herein has prayed for setting aside his order of removal dated 16.01.2008 alongwith relief of reinstatement in the service of management with full back wages along with the continuity of service and all the consequential benefits from management as he has claimed in his testimony before the Court that he had been unemployed since the date of his illegal termination despite efforts made by him in search of job.
59. This Court has already returned finding in issue no.1 hereinabove that order dated 16.01.2008 of the management vide which the workman was removed from service, is illegal and unjustified and consequently the termination of the workman from service in pursuance of the aforesaid order is also illegal and unjustified.
60. The workman has prayed for his reinstatement in LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 39 /44 service however, admittedly, workman has already attained the age of superannuation as he was about 72 years of age on the date of attestation of his evidence affidavit on 20.08.2021. Accordingly, workman cannot be granted reinstatement in service of the management as he has already attained the age of superannuation.
61. As regards the issue of back wages, Hon'ble Supreme Court in Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd., (1979 (2) SCC 80) has laid down:
"In the very nature of things there cannot to a straight jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances..."
62. The Hon'ble Supreme Court in the case M.P. State Electricity Board v. Jarina Bee, [(2003) 6 SCC 579] had observed that the award of full back wages was not the natural consequence of an order of reinstatement.
63. Regarding the issue of payment of back wages to the workman, in G.M. Haryana Roadways Vs. Rudhan Singh (2005) 5 SCC 591, it was held that :
"There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely whether ad hoc, short term, daily wage, temporary or permanent in character, any special LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 40 /44 qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calender year."
64. In the present case the relief of back wages claimed by the workman has to be assessed against the backdrop of admitted facts that workman was of 72 years of age, at time of attestation of his evidence affidavit Ex.WW1/A on 20.08.2021 and thus he would have attained age of 60 years in 2009 itself and accordingly, the claim of back wages has to be considered in the light of given facts and circumstances and legal prepositions cited hereinabove.
65. The workman in statement of claim as well as in his evidence affidavit Ex.WW1/A has claimed that he has been unemployed, since the date of his termination despite his best efforts and even no document has been placed on record by management to prove that he was gainfully employed, if any during the relevant period.
66. In the present case, the management has not been able to show that the workman herein was gainfully employed LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 41 /44 elsewhere. Needless to say, the initial burden to prove that the workman is unemployed was on the workman and the workman was supposed to discharge the onus by leading cogent and convincing evidence in this regard. The workman claimed that he is unemployed since the date of his illegal termination.
67. The Hon'ble High Court of Delhi in case titled as Indian Hydraulic Industries Pvt. vs. Kishan Devi and Bhagwati Devi, (2007) IIILLJ 55 Del has awarded compensation in lieu of reinstatement and back wages and relevant extract of the aforesaid judgment is as under:
"7. In the present case looking into the fact that the respondents were part-time employees working only for two hours a day and had absented from duty of their own, I consider it a fit case where compensation should have been awarded by the Labour Court instead of reinstatement and back wages. I consider that a compensation of Rs. 36,000/- to each workman shall meet the ends of justice. The writ petition is allowed to this extent and the relief granted by the Labour Court is modified and it is directed that in lieu of reinstatement and back wages, a compensation of Rs. 36,000/- be paid to the each work-woman. This amount has already been paid to the respondents asper record, under the directions of this Court. No order as to costs."
68. In the given facts and circumstances of the present case as the workman has already attained the age of superannuation, while bearing in mind that the length of service of the workman with the management was for a period of approximately 36 years and his admitted unblemished service record, this Court is of the considered opinion that grant of lump- sum compensation, in lieu of reinstatement and full back wages would be appropriate relief and shall meet ends of justice in the LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 42 /44 present case. Reliance in this regard is placed on the judgment in G.M. Haryana Roadways Vs. Rudhan Singh (Supra).
69. Therefore, in light of the foregoing discussion and observations, this Court is of opinion that lump-sum compensation of sum of Rs.6,00,000/- to the workman Maharaj Singh, in lieu of relief of reinstatement in the service and back wages, shall meet the ends of justice in the present case.
70. The workman Sh. Maharaj Singh S/o Sh. Sarni is accordingly granted following reliefs:
(i) This Court declares order dated 16.01.2008 of the management vide which workman was removed from service, as illegal, arbitrary and unjustified.
ii) This Court further declares termination of services of workman vide order dated 16.01.2008, as unlawful and unjustified.
iii) Consequently, this Court further holds that workman shall be entitled to claim his statutory and terminal benefits from management, as per law.
iv) The workman is granted lump-sum compensation of Rs.6,00,000/- (Rupees six lakhs only), in lieu of reinstatement and back wages.
v) The management is accordingly, directed to pay the above said compensation to the workman within 30 days of publication of this award, failing which, the amount shall also be carrying an interest @ 8% per annum till the date of its realization.LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 43 /44
71. With aforesaid directions, Issue No. 2 and Issue no. 4 stands disposed off.
72. Accordingly, Award is passed against the management.
73. Reference is answered, accordingly. Award be uploaded on the website of RADC. Signed copy of the award be sent to the concerned Dy. Labour Commissioner for publication as per rules.
73. File be consigned to the Record Room. Digitally signed by RITU RITU SINGH SINGH Date:
2024.10.08 05:20:19 +0530 Announced in the Open Court (RITU SINGH) on 08.10.2024 District Judge & Additional Sessions Judge POLC - IV, RADC New Delhi LIR No.4141/2018 Maharaj Singh Vs. Directorate of Education & Ors Page No. 44 /44