Himachal Pradesh High Court
___________________________________________________ vs Handoor Education Society on 25 October, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
CWP No. 2367/2008
Reserved on: 21.10.2016
.
Decided on: 25.10. 2016
___________________________________________________
Som Nath. ...Petitioner.
Versus
Handoor Education Society. ...Respondent.
_____________________________________________________________
of
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt
Whether approved for reporting? 1 Yes
For the Petitioner: Mr. Dinesh Bhanot, Advocate.
For the Respondent: Mr. Rahul Mahajan, Advocate.
_________________________________________________________
Justice Tarlok Singh Chauhan, Judge:
This writ petition is directed against the award passed by the Industrial Tribunal whereby the reference made by the appropriate Government came to be dismissed.
2. Brief facts of the case are that the petitioner was appointed as a Driver with the respondent in the year 1990. However, his services came to be terminated on 7.8.2001. The petitioner 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 21:26:17 :::HCHP 2 approached the Conciliation Officer and upon failure of conciliation, the matter was referred to the .
Industrial Tribunal, after reference in this regard was made by the appropriate Government. The Industrial Tribunal, on the basis of the pleadings and evidence led by the parties, dismissed the reference. It is this of decision that has been assailed by way of present petition on the ground that the penalty of termination, that too, after the petitioner had put in 11 years of rt service, is totally disproportionate and nothing but an act of vindictiveness.
3. I have heard the learned counsel for the parties and have perused the material placed on record.
4. Learned counsel for the petitioner would vehemently contend that having put in 11 years of service, the respondent on lame excuse terminated his services, as he was Vice President of the Union and this act was not taken in good taste of the Management and it was only to curb his activities that the order of termination came to be passed. He would further argue that penalty of termination is totally ::: Downloaded on - 15/04/2017 21:26:17 :::HCHP 3 disproportionate to the alleged misconduct and would rely upon the judgment of the Hon'ble Supreme Court .
in Collector Singh vs L.M.L. Limited, Kanpur (2015) 2 SCC 410, more particularly, the observation contained in paras 12 and 14, which reads as under:
[12] Coming to the case at hand, we are of the view that the punishment of dismissal from service for the of misconduct proved against the appellant is disproportionate to the charges. In Ram Kishan vs. Union of India & Ors., 1995 6 SCC 157, the delinquent employee was dismissed from service for using abusive language rt against superior officer.
On the facts and circumstances of the case, this Court held that the punishment was harsh and disproportionate to the gravity of the charge imputed to the delinquent and modified the penalty to stoppage of two increments with cumulative effect. The Court held as under:-
"It is next to be seen whether imposition of the punishment of dismissal from service is proportionate to the gravity of the imputation. When abusive language is used by anybody against a superior, it must be understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of abusive language. No strait-jacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service. Each case has to be considered on its own facts. What was the nature of the abusive language used by the appellant was not stated.::: Downloaded on - 15/04/2017 21:26:17 :::HCHP 4
On the facts and circumstances of the case, we are of the considered view that the imposition of punishment of dismissal from service is harsh and disproportionate to .
the gravity of charge imputed to the delinquent constable.
Accordingly, we set aside the dismissal order.
Reference may also be made to the decisions of this Court in Rama Kant Misra vs. State of Uttar Pradesh & Ors., 1982 3 SCC 346 and Ved Prakash Gupta vs. Delton Cable India(P) Ltd., 1984 2 SCC 569."
[15] Having said that the punishment of dismissal of from service is harsh and disproportionate, this Court in ordinary course would either order reinstatement modifying the punishment or remit the matter back to the rt disciplinary authority for passing fresh punishment. But we are deliberately avoiding the ordinary order of course. We are doing so because nearly two decades have passed since his termination and over these years the appellant must have been gainfully employed elsewhere. Further, the appellant was born in the year 1955 and has almost reached the age of superannuation. In such circumstances, there cannot be any order of reinstatement and award of lump sum compensation would meet the ends of justice. Considering the length of service of the appellant in the establishment and his deprivation of the job over the years and his gainful employment over the years elsewhere, in our view, lump sum amount of compensation of Rs.5,00,000/- would meet the ends of justice in lieu of reinstatement, back wages, gratuity and in full quit of any other amount payable to the appellant."
5. On the other hand, Mr. Rahul Mahajan, learned counsel for the respondent, would argue that ::: Downloaded on - 15/04/2017 21:26:17 :::HCHP 5 the petitioner was habitual offender and it was for his repeated misconduct that his services came to be .
terminated as he is not fit enough to be retained in service.
6. Having considered the rival contentions of the parties, I am of the considered view that no fault of can be found with the award passed by the Industrial Tribunal. However, before adverting to the relative merits of the case, the judgment of the Hon'ble rt Supreme Court in Collector Singh's case (supra) needs to be appreciated. In that case the petitioner had thrown jute/cotton waste balls on his superior but realizing his mistake had apologized by submitting a written apology. However, this is not fact situation obtaining in the present case.
7. The misconduct attributed to the petitioner that eventually led to his termination was that on 9.5.2001, RW-3 Satish Kumar, Clerk, had asked the petitioner how he had permitted certain persons to unauthorisedly sit in the school bus, to which the petitioner objected and started abusing RW-3. When his behaviour was objected to, the petitioner stopped ::: Downloaded on - 15/04/2017 21:26:17 :::HCHP 6 the bus and then gave physical beating to RW-3 compelling him to file a written complaint to the .
School Authority, as per Ex.PW-3/A.
8. A close scrutiny of the testimony of RW-4 Susheel Chand Sharma, Secretary of the respondent-
school would reveal that the petitioner is incorrigible of and has repeatedly misconducted himself, as would be evident from the perusal of para 11 of the award, which reads thus:
rt "11. RW-4 Shri Susheel Chand Sharma, Secretary Surindra Public School has stated that he is the Secretary of the school since 1984 and the petitioner was working as Driver and the conduct of the petitioner was not proper, who used to take private persons in the school bus unauthorizedly. In 2000, a transport committee meeting was held in which the conduct of the petitioner was discussed as per minutes Ex.RW- 4/A and the conduct of the petitioner was found unsatisfactory.
The explanation was called vide letter Ex.RW-4/B but the petitioner has not given any reply. The management has given oral warning to the petitioner from time to time, who was asked to improve his conduct. In July, 2000, the petitioner took the school bus without permission and when enquired, the petitioner submitted the written reply as per Ex.RW-4/C. In July, 2001 a notice was issued to the petitioner for carrying unauthorized persons in the bus which is Ex.RW-4/D. In May, 2001 the conductor of the bus was on leave. They deputed their Clerk Satish Kumar to help the petitioner but the petitioner allowed certain unauthorized persons into the bus and when Mr. Satish Kumar objected to it, the petitioner abused and slapped him as per complaint Ex.RW-3/B and then the petitioner was placed under suspension vide letter Ex.RW-::: Downloaded on - 15/04/2017 21:26:17 :::HCHP 7
4/E and the charge sheet is Ex.RW-4/F and the reply of the petitioner is Ex.RW-4/G. The reply of the petitioner was not found justified and they started the enquiry, the petitioner participated in the enquiry along with Satish Inder Nath Banot.
.
The enquiry officer found the petitioner guilty of the charges as per report Ex.RW-3/D and after enquiry second show cause notice was given which is Ex.RW-4/H and its reply is Ex.RW- 4/J. The reply was not found satisfactory and the management came to the conclusion that the petitioner is not a fit person to be retained in the job as per order Ex.RW-4/K and then the petitioner was dismissed from service, who was given all of benefits as per law and financial dues amounting to Rs. 1520/- was sent to the petitioner which was not accepted by the petitioner and then the petitioner raised the demand notice in which the respondent paid the amount as per letter Ex.RW-4/L. rt The petitioner is gainfully employed, who has his own vehicles."
9. It is more than settled that unless the punishment imposed by the Disciplinary Authority shakes the conscience of the Court/Tribunal and is so shockingly disproportionate, there is no scope for interference. It is equally settled that the judicial review in such cases is extremely limited and the Court cannot substitute its findings for the findings recorded by the Disciplinary Authority. The law on the subject has been succinctly dealt with by the Hon'ble Supreme Court in S.R. Tewari vs. Union of India and another (2013) 6 SCC 602, wherein it was observed as under:
::: Downloaded on - 15/04/2017 21:26:17 :::HCHP 8[19] In Commissioner of Income-tax, Bombay & Ors. v. Mahindra & Mahindra Ltd. & Ors., 1984 AIR(SC) 1182, this Court held that various parameters of the court's .
power of judicial review of administrative or executive action on which the court can interfere had been well settled and it would be redundant to recapitulate the whole catena of decisions. The Court further held:
"It is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to, or has been arrived at of by the authority misdirecting itself by adopting a wrong approach, or has been influenced by irrelevant or extraneous matters the court would be justified in rt interfering with the same."
[20] The court can exercise the power of judicial review if there is a manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous. Such exercise of power would stand vitiated. The court may be justified in exercising the power of judicial review if the impugned order suffers from mala fide, dishonest or corrupt practices, for the reason, that the order had been passed by the authority beyond the limits conferred upon the authority by the legislature. Thus, the court has to be satisfied that the order had been passed by the authority only on the grounds of illegal- ity, irrationality and procedural impropriety before it interferes. The court does not have the expertise to correct the administrative decision. Therefore, the court itself may be fallible and interfering with the order of the authority may impose heavy administrative burden on the State or may lead to unbudgeted expenditure. (Vide: Tata Cellular v. Union of India, 1996 AIR(SC) 11; People s Union for Civil Liberties ::: Downloaded on - 15/04/2017 21:26:17 :::HCHP 9 & Anr. v. Union of India & Ors., 2004 AIR(SC) 456; and State of N.C.T. of Delhi & Anr. v. Sanjeev alias Bittoo, 2005 AIR(SC) 2080).
.
[21] In Air India Ltd. v. Cochin International Airport Ltd. & Ors., 2000 AIR(SC) 801, this Court explaining the scope of judicial review held that the court must act with great caution and should exercise such power only in furtherance to public interest and not merely on the making out of a legal point. The court must always keep the larger public interest in mind in order to decide of whether its intervention is called for or not.
[22] There may be a case where the holders of public offices have forgotten that the offices entrusted to rt them are a sacred trust and such offices are meant for use and not abuse. Where such trustees turn to dishonest means to gain an undue advantage, the scope of judicial review attains paramount importance. (Vide: Krishan Yadav & Anr. v. State of Haryana & Ors., 1994 AIR(SC) 2166).
[23] The court must keep in mind that judicial review is not akin to adjudication on merit by re- appreciating the evidence as an appellate authority. Thus, the court is devoid of the power to re-appreciate the evidence and come to its own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its own independent finding. (Vide: High Court of Judicature at Bombay through its Registrar v. Udaysingh s/o Ganpatrao Naik Nimbalkar & Ors., 1997 AIR(SC) 2286; Government of Andhra Pradesh & Ors. v. Mohd. Nasrullah Khan, 2006 AIR(SC) 1214; and Union of India & Ors. v. Manab Kumar Guha, 2011 11 SCC 535.
::: Downloaded on - 15/04/2017 21:26:17 :::HCHP 10[24] The question of interference on the quantum of punishment, has been considered by this Court in a catena of judgments, and it was held that if the .
punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India & Ors., 1987 AIR(SC) 2386, this Court observed as under:
"But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It of should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of rt the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." (See also: Union of India & Anr. v. G. Ganayutham (dead by Lrs.), 1997 AIR(SC) 3387; State of Uttar Pradesh & Ors. v. J.P. Saraswat, 2011 4 SCC 545;
Chandra Kumar Chopra v. Union of India & Ors., 2012 6 SCC 369; and Registrar General, Patna High Court v.
Pandey Gajendra Prasad & Ors., 2012 AIR(SC) 2319).
[25] In B.C. Chaturvedi v. Union of India & Ors., 1996 AIR(SC) 484, this Court after examining various its earlier decisions observed that in exercise of the powers of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either ::: Downloaded on - 15/04/2017 21:26:18 :::HCHP 11 directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with .
cogent reasons in support thereof. While examining the issue of proportionality, court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or of substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the rt quantum of punishment in place of punishment awarded by the Competent Authority.
[26] In V. Ramana v. A.P.S.R.T.C. & Ors., 2005 AIR(SC) 3417, this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards."
In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the Court itself can impose appropriate punishment by recording cogent reasons in support thereof.
[27] In State of Meghalaya & Ors. v. Mecken Singh N. Marak, 2008 AIR(SC) 2862, this Court observed that a Court or a Tribunal while dealing with the quantum of ::: Downloaded on - 15/04/2017 21:26:18 :::HCHP 12 punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope .
for interference is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocks the conscience of the court, cannot be subjected to judicial review. (See also: Depot Manager, A.P.S.R.T.C. v. P. Jayaram Reddy, 2009 2 SCC 681.
[28] The role of the court in the matter of of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed rt appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases.
The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: Union of India & Ors. v. Bodupalli Gopalaswami, 2011 13 SCC 553; and Sanjay Kumar Singh v. Union of India & Ors., 2012 AIR(SC) 1783.
[29] In Union of India & Ors. v. R.K. Sharma, 2001 AIR(SC) 3053, this Court explained the observations made in Ranjit Thakur observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, the said observations in Ranjit Thakur are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely ::: Downloaded on - 15/04/2017 21:26:18 :::HCHP 13 because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there .
could be judicial review and courts should not interfere merely on compassionate grounds.
[30] The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the of weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly rt unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, 1984 AIR(SC) 1805; Kuldeep Singh v. Commissioner of Police & Ors., 1999 AIR(SC) 677; Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary, 2010 AIR(SC) 589; and Babu v. State of Kerala, 2010 9 SCC 189."
10. Adverting to the facts, it would be noticed that earlier to the reference to the Labour Court, a departmental inquiry had been initiated against the petitioner wherein, the Inquiry Officer had found him guilty of the charges. Eventually, second show cause notice was issued to the petitioner, which was duly ::: Downloaded on - 15/04/2017 21:26:18 :::HCHP 14 replied to, however, the reply was not found satisfactory and the respondent came to the .
conclusion that the petitioner was not a fit person to be retained in the job and accordingly his services were dispensed with and it was this order, which formed the subject matter of adjudication of the matter of before the learned Tribunal.
11. Bearing in mind the exposition of law, as set out in S.R. Tiwari case (supra), coupled with rt repeated misconduct of the petitioner, it cannot be said that the punishment, as imposed upon the petitioner, is in any manner, disproportionate so as to shake the judicial conscience to the misconduct.
12. The petitioner had been working as a Driver in a School where strict discipline has to be maintained by all concerned including the Teachers, Staff, Class-IV employees including Drivers. No one can be permitted to vitiate the atmosphere of the School, that too, by rank insubordination.
Encouraging the petitioner and reinstating him in service would virtually amount to subverting ::: Downloaded on - 15/04/2017 21:26:18 :::HCHP 15 discipline, which in a given facts and circumstances of the case, is impermissible.
.
13. Resultantly, there is no merit in this writ petition and the same is accordingly dismissed.
Pending application(s), if any, also stands disposed of, leaving the parties to bear their own costs.
of (Tarlok Singh Chauhan), Judge.
25.10. 2016 rt *awasthi* ::: Downloaded on - 15/04/2017 21:26:18 :::HCHP