Rajasthan High Court - Jaipur
Rajasthan State Road Transport ... vs Shri Ram Yadav on 9 May, 1995
Equivalent citations: 1995(3)WLC16, 1995(2)WLN184
Author: P.K. Palli
Bench: P.K. Palli
JUDGMENT A.P. Ravani, J.
1. A question of vital importance relating to service jurisprudence has arisen in these two appeals. Before imposing the economic death penalty of dismissal or removal from service, whether a disciplinary authority is bound to apply his mind to the various alternative penalties which could be imposed upon delinquent employee and as to whether the disciplinary authority is required to indicate "good and sufficient reasons" for choosing a particular penalty? Whether the vital considerations namely, (1) the nature and magnitude of the established charge, (2) the desirability or otherwise of retaining the employee in seivice in the context of the charges proved against him and (3) whether penalty lesser than the extreme penalty of dismissal or removal from service would prove adequate or not and various other aspects are required to be taken into consideration by the disciplinary authority while imposing penalty? These questions have arisen in these two appeals which arise out of the proceedings initiated by a Conductor who was ordered to be removed from service at the conclusion of the departmental enquiry.
2. These two appeals arise out of the same judgment and order passed by the learned Single Judge in S.B. Civil Writ Petition No. 1346 of 1984 decided on September 28, 1994. One appeal i.e D.B.Civil Special Appeal No. 795 of 1994 is filed by the Rajasthan State Road Transport Corporation while another i.e. D.B.Civil Special Appeal No. 210 of 1995 is filed by the workman who was serving as Conductor with the Corporation (hereinafter, the workman is referred to as the petitioner' and the Rajasthan State Road Transport Corporation is referred to as 'the respondent Corporation'. The learned Single Judge has ordered to set aside the punishment imposed upon the petitioner workman and has directed the respondent Corporation to pay Rs. 1,00,000/- (one lac) in lieu of reinstatement and payment of back wages.
3. 'The Petitioner' was appointed as Conductor on August 28, 1975, He was charge-sheeted on March 30, 1978 for the mis-conduct of (f) allowing passengers travailing without ticket on three different occasions, (ii) that he did not make entry in the way-bill and (iii) that the bus was allowed to proceed without handing over the way-bill to the driver. He replied to the charges. Vide order dated July 14, 1978 he was ordered to be dismissed from service. The petitioner workman raised industrial dispute. The Labour Court accepted the reference vide judgment and award dated June 9, 1981 holding that the order of dismissal from service was illegal and void. The Labour Court held that the order was passed without holding enquiry and it was violative of the principles of natural justice. The petitioner workman was reinstated in service on September 10, 1981. Thereafter fresh enquiry was started against him on the same charges. At the conclusion of the enquiry by order dated April 12, 1982 he was ordered to be removed from service as provided Under Rule 36 (7) of the Rajasthan State Road Transport Workers and Workshop Employees Standing Orders, 1965 (hereinafter referred to as 'the Standing Orders'). It is also directed that as provided in Rule 36(5) of the Standing Orders the amount of wages for the period of suspension be forfeited. Against this order the petitioner field appeal before the departmental authority. However the same was dismissed.
4. After dismissal of the appeal the petitioner workman sought to raise industrial dispute under Section 10 of the Industrial Dispute Act, 1947. The government refused to make reference after considering the case on merits. In view of the law laid down by the Supreme Court in the case of Ram Avtar Sharma v. State of Haryana, and in the case of Telco Convoy Driver's Mazdoor Sangh v. State of Bihar , the appropriate government cannot delve into the merits of the dispute and take upon itself the determination of the lis. Section 10 of the Act requires the Government to determine prima facie whether an industrial dispute exists or is apprehended. Once there is genuine industrial dispute the appropriate government has got to make reference to the Labour Court or Industrial Tribunal as the case may be. If the appropriate government delves into merits and decides the dispute it would be in excess of the powers conferred upon it by Section 10 of the Act. Since the petitioner could not succeed in getting the dispute referred he filed the writ petition in this High Court on May 4, 1984 challenging the legality and validity of order of dismissal. After a period of little over a decade, the Corporation filed reply. Ultimately, at the request of the petitioner for early hearing of the writ petition it was taken up for final hearing and decided on September 28, 1994 as stated above.
5. Before the learned Single Judge it was contended that the petitioner workman was not supplied with the copy of the report of the enquiry officer. Therefore, he was prejudiced in his defence. The learned Single Judge after considering the rival contentions on this point and after considering the case law on the point came to the conclusion that serious prejudice has been caused to the workman on account of non supply of the report of the enquiry officer. In para 24 of the judgment the learned Single Judge came to the conclusion that grave injury is done to the petitioner by non-supply of the copy by the enquiry officer. The petitioner-workman has been materially prejudiced in the matter of his defence. He was unable to make effective appeal before the appellate authority. The learned Single Judge further observed that there was discrepancy in the order of termination as was served on the petitioner and the one factually passed by the disciplinary authority. For these reasons the learned Single Judge came to the conclusion that serious prejudice has been caused to the petitioner workman in the matter of defence and therefore, penalty imposed upon him was liable to be quashed and set aside.
6. The learned Single Judge reversed and set aside the order of punishment imposed upon the workman. The learned Single Judge did not think it proper to permit the respondent Corporation to hold de novo inquiry after such a long period. At the same time the learned Single Judge did not pass order as regards reinstatement of the petitioner workman. Instead, the learned Single Judge directed the respondent Corporation to pay compensation of Rs. 1,00,000/- (Rupees One Lac Only) in lieu of reinstatement and payment back wages. This judgment and order is passed by the learned Single Judge on September 28, 1994.
7. It is against the aforesaid judgment and order passed by the learned Single Judge that both, the petitioner workman as well as the respondent Corporation have filed two different appeals as mentioned above. The petitioner workman prays that he should have been ordered to be reinstated in service with full back wages. On the other hand, the respondent Corporation submits that the law laid down by Hon'ble Supreme Court in the case of Union of India v. Mohd. Ramjan Khan as regards non-supply of the report of the enquiry officer and consequences ensuing therefrom is only prospective. It is further submitted that view of the decision of the Hon'ble Supreme Court in the case of Managing Director, ECIL v. B.Karuanakar, , the case should have been remanded to the disciplinary authority for further enquiry, if court found that on account of non-supply of the report of the enquiry officer, serious prejudice was caused to the petitioner workman.
8. At the time of hearing of the appeals the learned Counsel for the petitioner workman has not challenged finding regarding charge of misconduct having been proved. It is submitted that as per the provisions of 'the standing Orders' it was incumbent upon the competent authority to apply its mind to the question of quantum of punishment and indicate "good and sufficient reasons" before imposing the penalty of termination of service which would amount to economic death sentence. In support of this submission reliance is placed on Rule 36 of 'the Standing Orders' which reads as follows:
36. One or more of the following penalties may, for good and sufficient reasons, be imposed on a worker by a competent authority, penalties from (v) to (viii) shall be appealable-
(i) Censure. Three censures in a period of one year will involve withholding of one increment.
(ii) Withholding of increments or promotion.
(iii) Recovery from pay/wages of the whole or part of any pecuniary loss caused to the employer by negligence or breach of any law.
(iv) Fine upto 2% of worker's wages.
(v) Forfeiture of wages during the period of suspension.
(vi) Reduction to a tower post or grade.
(vii) Termination of service, which shall not be a disqualification for future employment.
(viii) Dismissal from service which shall be disqualification for future employment.
9. The learned Counsel for the respondent submitted that this point was never urged before the learned Single Judge nor it has been specifically raised in the petition. However, since the question raised is based on proved and/or admitted facts and is purely a question of law, we have permitted the learned Counsel for the petitioner workman to raise the same in appeal.
10. The impugned order dated April 12, 1982 (Annexure 8 to the petition) when translated in english, reads as follows:
OFFICE ORDER Pursuant to Regional Office Order No. 374 dated March 30, 1978 Conductor Shri Ram son of Phoola Ram of Jalore Depot was served with charge sheet and the Depot Manager (Region), Jodhpur was appointed as enquiry officer.
The enquiry report and other relevant record pertaining to the charges and the Statements of rival parties forwarded by the enquiry officer have been carefully considered. The enquiry officer has in his report held that Conductor Shri Ram was guilty of the charges and I concur with the same.
Therefore, I Regional Manager Jodhpur hold Shri Ram son of Phoola Ram Conductor Jalore Depot guilty of the aforesaid charges and remove him form service as per provisions of Rule 36(7) of the Standing Orders and forfeit the wages for the period of suspension as per the provisions of Rule 36(5) of the Standing Orders.
sd/-
Regional Manager Mere reading of the order imposing penalty upon the petitioner workman makes it clear that no where the competent authority has mentioned "good and sufficient reasons" for imposing punishment of removal from service and for forfeiting the wages for the period of suspension
11. The learned Counsel for the respondent was requested to point out as to whether the competent authority has stated reasons for imposing the penalty in question upon the petitioner workman. The learned Counsel for the respondent has not been able to place any material before the court to show that the competent authority had "good and "sufficient reasons" to choose the penalty of removal from service and forfeiture of wages for the period of suspension. Thus it is an established position that the competent authority has not applied its mind as regards the quantum of punishment to be imposed upon the workman, nor the competent authority has stated "good and sufficient reasons for imposing the drastic penalty of removal from service which would amount to economic death sentence of workman. Similarly, no reason is assigned for forfeiting the wages for the period of suspension. In the order, it is also not mentioned as to for how much period the petitioner workman remained under suspension and how much amount of wages has been ordered to be forfeited.
12. It may be noted that the rule making authority has provided for imposition of one or more of the penalties enumerated in Rule 36. First four of the penalties i.e. (i) censure, (ii) Withholding of increments or promotion, (iii) recovery from pay/wages of the whole of part of any pecuniary loss caused to the employer by negligence breach of any law and (iv) fine upto 2% of worker's wages, are not appealable. The other four penalties, i.e. (i) forfeiture of wages during the period of suspension, (ii) reduction to a lower post or grade, (iii) termination of service wish shall not be a disqualification for future employment and (iv) dismissal from service which shall be disqualification for future employment, are penalties, against the imposition of which appeal could be filed to the appellate authority. Standing Orders itself confer wide discretion upon the competent authority to select the penalty and impose upon the workman. This has got to be done by exercising the discretion in accordance with law. It is incumbent upon the competent authority to indicate "good and sufficient reasons" for selecting the penalty. The reasons must make it intelligible to all concerned as to why the competent authority has selected a particular penalty. Otherwise question may be asked as to why the penalty may not be minimum? The other only may say as to why not the maximum? The rule making authority has cast obligation upon the competent authority to consider the question of penalty rationally and exercise his discretion in choosing the penalty in just, fair and reasonable manner. That is the reason why the rule making authority has made it obligatory upon the competent authority to indicate "good and sufficient reasons" while selecting and imposing particular penalty upon the delinquent employee.
13. In essence, Rule 36 of the Standing Orders enjoins duty upon the competent authority to determine which of the penalties enumerated in the Rule is to be imposed upon the delinquent employee. In other words, to decide means to give rational judgment after considering the pros and cons of the matter. As the rule in terms enjoins a duty upon the competent authority to make selection of the penalty 'for good and sufficient reasons" the competent authority is bound to apply its mind to all the relevant aspects of the case. The order itself must show that all the relevant aspects have entered into consideration in rendering the decision by a process of ratiocination. It is only when the order itself gives a clue of the factors which have weighed with the competent authority in deciding upon the punishment of removal from service that one can say that there has been application of mind. Only then it can be realised that relevant and germane factors (and none others) have entered into the equation. There can be no determination or decision which does not disclose that the "plus" and "minus" factors and 'for" and "against" considerations have been weighed in the weighing scales. The order must, on the face of it, show as to why the most serious penalty of removal from service, from out of the list alternatives is chosen and why a less serious penalty has been considered to be inadequate. Selection of maximum penalty and naming it from out of the list of alternative penalties which could have been imposed cannot be done arbitrarily. Similarly, it cannot be a matter of 'ipse dixit' of the disciplinary authority. He has to inform himself of the relevant considerations. He must re-assure himself that the particular penalty deserves to be imposed in order to meet the requirements of the situation. It will not be sufficient for the competent authority to say in a general, vague and ambiguous manner that having regard to the facts and circumstances of the case the employee concerned deserves to be removed or dismissed from service. The competent authority is bound to take into consideration the gravity of the charge, the nature of its consequences, the circumstances under which the misconduct was committed, the working condition of the workman, his past service record, the personal and family circumstances of the delinquent employee. The competent authority must also pose a question as to whether the charge warranted an inference as regards his dishonesty lack of integrity or lack of uprightness, whether the fault was such which had resulted in serious detriment to the public interest, whether the prolonged proceedings and sufferings by the workman and his family members during the period of litigation would not be sufficient to teach him a lesson? These and many other vital considerations must be posed by the competent authority and answer the same to his own satisfaction.
14. It is not sufficient for the competent authority to consider the report of the enquiry officer and his advice and to say that having regard to the nature of the charges the penalty of removal from service or dismissal deserves to be imposed. The Disciplinary Authority is bound to ask the question to himself as to whether the, penalty of dismissal from service is the only penalty which could be imposed having regard to the nature of the charges levelled against the employee. He has to pose to himself the question as to whether little more lenient of the penalties will meet the ends of justice or not?
15. It must be realised that the law enjoins that a person accused of even petty offences must be heard on the question of sentence. It is elementary that the sentence should be neither too lenient nor too harsh. The sentence must be just even when the penalty likely to be imposed is a penalty of fine or a short term of imprisonment. The accused is required to be heard on these points and the authority is required to consider all these aspects. Therefore, there is greater reason for insisting on the disciplinary authority discharging this very delicate function in relation to the life and career of the employee concerned. The disciplinary authority has to strike a neat balance and to determine a just penalty. The penalty cannot be, and should not be characterised either as too lenient or too harsh. It may be that the disciplinary authority may commit an error in selecting particular penalty and a different view may be possible. But atleast he is bound to make an effort by weighing the pros and cons of every charge from the stand point that the gravity of the offence and the compulsion to impose the maximum penalty or more serious penalty resulting into economic death sentence. After making an honest attempt in ascertaining just penalty called for in the facts and circumstances of each case, the disciplinary authority can pass an appropriate order of punishment. But if he makes no attempt it cannot be said that he has discharged quasi judicial function in the manner required by law. In such a situation it has got to be held that he has not applied his mind to the most important function of selecting the penalty
16. In this connection reference may be made to a judgment of the Gujrat High Court, reported in the case of H.P. Thakore v. State of Gujrat, 1979(20) GLR 109 wherein the learned Single Judge of the Gujrat High Court (M.P. Thakkar.J., as he then was) has enumerated certain principles and guidelines which need to be borne in mind by the Disciplinary Authority while imposing punishment on a Government employee. At this stage we may also refer to another decision of the Gujrat High Court in the case of R.M. Parmar v. Gujrat Electricity Board, 1982(23) RLR 352 (M.P.Thakkar.C.J., as he then was, and D.C.Gheewala.J.). Of course, it was a case in relation to the provisions of Section 11A of the Industrial Disputes Act, 1947. However, the principles laid down therein are equally applicable to the disciplinary authority which is required to discharge the important function of selection and imposing penalty on an erring employee. Certain important dimensions which need to be kept in mind by the disciplinary authority have been enumerated by the Division Bench of Gujrat High Court in the case of R.M. Parmar (supra), which are as follows:
1. In a disciplinary proceeding for an alleged fault of an employee punishment is imposed not in order to seek retribution or to give vent to feeling of wrath.
2.The main purpose of a punishment is to correct the fault of the employee concerned by making him more alert in the future and to hold out a warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment. And the approach to be made is the approach parents make towards an erring or misguided child.
3.It is not expedient in the interest of administration to visit every employee against whom a fault is established with the penalty of dismissal and to get rid of them. It would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault.
4.In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Surely one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide.
5.When penalties of different categories can by imposed in respect of the alleged fault one of which is dismissal from service, the disciplinary authority per force is required to consult himself for selecting the most appropriate penalty from out of the range of penalties available that can be imposed, having regard to the nature, content and gravity of the default. Unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the employee concerned it would be absolutely unsafe to retain him in service, the maximum penalty of dismissal cannot be imposed. If a lesser penalty can be imposed without seriously jeopardising the interest of the employer the disciplinary authority cannot imposed the maximum penalty of dismissal from service. He is bound to ask his inner voice and rational faculty why a lesser penalty cannot be imposed.
6.It cannot be overlooked that by and large it is because the maximum penalty is imposed and total ruination stares one in the eyes that thand employee concerned is obliged to approach the Court and avail of the costly and time-consuming machinery to challenge in desperation the order passed by the disciplinary authority. If a lesser penalty was imposed, he might not have been obliged to make recourse to costly legal proceedings which result in loss of public time and also result in considerable hardship and misery to the employee concerned.
7. When the disciplinary proceedings end in favour of the employee the employer has often to pay back wages say for about 5 years without being able to take work from the employee concerned. On the other hand, the employee concerned would have had to suffer economic misery and mental torture for all these years. Even the misery of being obliged to remain idle without work would constitute an unbearable burden. And when the curtain drops every one is left with a bitter taste in the month. All because extreme penalty of dismissal or removal is imposed instead of a lighter one.
8. Every harsh order of removal from service creates bitterness and arouses a feeling of antagonism in the collective mind of the workers and gives rise to a feeling of class conflict. It does more harm than good to the employer as also the society.
9. Taking of a petty article by a worker in a moment of weakness when he yields to temptation does not call for an extreme penalty of dismissal from service. More particularly when he does not hold a sensitive post of trust (pilferage by a cashier or by a store-keeper from the stores in his charge, for instance, may be viewed with seriousness). A worker brought up and living in an atmosphere of poverty and want when faced with temptation,ought not to,but may,yield to it in a moment of weakness. It cannot be approved, but it can certainly be understood particularly in an age when even the rich commit economic offences to get richer and do so by and large with impunity. (And even tax evasion or possession of black money is not considered to be dishonourable by and large). A penalty of removal from service therefore not called for when a poor worker yields to a momentary temptation and commits an offence which often passes under the honourable name of kleptomania when committed by the rich.
We are in respectful agreement with the aforesaid principles and observations made by Division Bench of the Gujrat-High Court.
17. The learned Counsel for the respondent Corporation relied upon a judgment of learned Single Judge of this Court in the case of R.S.R.T.C., Alwar v. Kailash. Chhnd Sharma reported in 1994 WLR 458. In that case the learned Single Judge of this Court has made certain observations With regard to the powers of labour court and industrial Tribunals under Section 11A of the Industrial Disputes Act, 1947. This is not the question involved in this appeal. In the instant case the question is that of application of mind by disciplinary authority while choosing particular penalty. The question is as to whether the disciplinary authority had "good and sufficient reasons" for imposing the extreme penalty of removal from service which could be termed as economic death sentence. Hence the decision is of no help to the respondent Corporation.
18. Learned Counsel for the respondent Corporation relied upon a decision of this Court in the case of Bakshl Steels Ltd. v. Regional Provident Fund Comissioner, Jaipur reported in. 1993(1) RLR 314. We fail to understand as to how this decision is relevant at all. It is a case with regard to order passed by the Regional Provident Fund Commissioner, Jaipur under Section 14B of the Employees Provident Fund and Miscellaneous Provisions ACt, 1952. That decision had no relevance whatsoever to the facts and circumstances of this case.
19. The learned Counsel also relied upon two unreported decisions of this Court in D.B. Civil Special Appeal No. 176 of 1987 decided on February 14, 1995 (Coram- J.R. Chopra and P.K. Palli, JJ.) and Ram Singh v. RSRTC, D.B. civil writ petition No. 1943/87 decided on May 3, 1988 (Coram. A.K. Mathur and R.S. Verma, JJ.). In none of these case the question as regards the selection of one or more penalties out of the several penalties enumerated in the Rules has been considered. The question is what is the duty of the disciplinary authority while selecting penalty and whether "good and sufficient reasons" should be indicated by the disciplinary authority while selecting the punishment or not? This question did not arise in any of the aforesaid decisions and has not been considered by the Division Bench of this Court. Therefore, these decisions are of no help to the respondent Corporation.
20. The learned consel for the respondent Corporation relied upon the decision of the Supreme Court in the case of Commandant, Central Industrial Security Force v. Bhopal Singh, reported in 1993 (4) SVLR 336. It was a case in which the High Court set aside the order of removal from service on the ground that the delinquent was not served with the copy of the enquiry report during the disicplinary proceedings. In view of the decision of the Supreme Court in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar , the Supreme Court held that the principles laid down in the case of Union of India v. Mohd. Ramjan Khan were prosective in operation and were applicable to the orders of punishment passed after November 20, 1990. In view of this postion of law the Suprme Court reversed and set aside the judgment of the High Court. Such is not the case before us. As indicated above, in this case, the question is with regard to the quantum of penalty and the slection of the same by the disciplinary authority without application of mind.
21. Reliance is also placed on the decision of the Supreme Court in the case of Union of India v. Parma Nanda and Government of Tamilnadu v. A. Rajapandian . Both these cases pertain to powers of the Administrative Tribunals under Section 14 of the Administrative Tribunals Act. In these cases also the question reised in these appeals was never raised and has not been considered by the Hon'ble supreme Court.
22. Reliance is also placed upon the decision of the Hon'ble Supreme Court in the case of State of Madras v. A.R. Srinivasan . Therein the Hon'ble Supreme Court has inter alia held that while accepting the findings of the Tribunal reasons need not be given by the Government. This question does not arise in these appels. As indicated hereinabove, the question is whther the disicplinary authority should apply his mind to the selection of penalty out of the several alternative penalties provided in the rules. Hence this decision is also of no help to the respondent Corporation.
23. In the instant case the disiplinary authority has made no attempt to ascertain as to what will be the just penalty in the facts and circumstances of the case. The disciplinary authority was under an obligation as per the provisions of the Standing Orders to indicate "good and sufficient reasons" before passing appropriate order of punishment. In the instant case no attempt is made to ascertain as to what would be the just penalty. As indicated hereinabove, the learned consel for the respondent Corporation has not been able to place any material before the Court to show that the competent authority had "good and sufficient reasons" to choose the penalty of removal from service and forfeiture of wages for the period of suspension. In this view of the matter, it cannot be said that the disciplinary authority has dischrged the quasi judicial function in the manner required by law. It has got to be held that the disciplinary authority has not applied his mind to the most important function. Thererefore, the order is nullity and the same is required to be quashed and set aside.
24. This brings us to the question of penalty. The learned Counsel for the Drespondent Coropration submitted that the matter may be remanded to the disciplinary authority for considering the quistion of penalty. Ordinarily we would have adpoted this course but it would not be just and proper to adopt this course in this case. Be it realised that the mis-conduct alleged against the workman is of the year 1978. The workman was ordered to be dismissed from service in July, 1978 wihtout holding enquiry. The Labour Court quashed and set aside the order of dismissal from service and disrected that the workman be reinstated. After reinstatement of the workman in the year 1981, on the same charges of mis-counduct fresh enquiry was held by the respondent Corporation. At the conclusion of the enquiry by order dated April 12, 1982 the petitioner workman has been ordered to the removed from service and the amount of wages for the period of suspension has been forfeited. The petitioner workman sought to raise industrial dispute but the Government without any justification and contrary to the principles laid down by the Hon'ble Supreme Court in the case of Ram Avtar Sharma (supra) and in the case of Telco Convoy Drivers' Mazdoor Sangh (supra) refused to make reference. There after the petitioner approached this Court by filling the writ petition in the year 1984. In this petition for a period of more than a decade the respondent Corporation did not file reply ultimately the pettition has ben decided on September 28, 1994. Now the appeal is being decided in the month of May, 1995. This resume of the protracted litigation shows that the petitioner workman has suffered pangs of litigation. He must have suffered anxiety and anguish of the litigation and must have incurred heavy expenditure without there being any regular sorce of earning. If the matter is remanded now after such a long time it would not meet the ends of justice but is would certainly amount to denial of justice to the Workman observed by Supreme Court in the case of Bhagat Ram v. State of H.P. AIR 1993 S.C 454 remand of the case to the competent authority? Obviously the purpose is to impose some penalty upon the petitioner workman. In the facts and circumstances of the case it would be just and proper that the High Court in exercise of its powers under Articles 226 and 227 of the Constitution imposes appropriate penalty without prolonging the matter. For these reasons the request for remand of the matter to the disciplinary authority is rejected.
25. This brings us to the question of penalty. Even if one were to hold that the mis-conduct alleged against the workman of allowing passengers to treavel without ticket on three different occasions and not making entry in the way bill and to allow the bus to proceed further without handing over the way bill to the driver are held proved, then also there is nothing to indicate that the workman recovered the ticket charges from the passengers and mis-appropriated the same for his own use. The charges of mis-conduct even if held proved may amount to serious lapse and negligence on the part of the petitioner workman. There is nothing on record to show that the workman was guilty of such mis-conduct "in past. In our opinion if a leasser penalty other than that of removal from service and forfeiture of wages for the period of suspension, is imposed it would not jeopardise the insterest of the employer i.e. the RSRTC. Even if one were to infer by stretching the reasons that the petitioner workman was guilty of recovering the ticket charges from the passengers, then also the mis-conduct is required to be dealt with sympathy. A penalty of removal from service is not called for. A workman brought up and living in an atmosphere of poverty and wand when faced with temptation may yield to it in a moment of weakness. We hasten to observe that one should not yield to such temptation, but it has got to be understood and viewed with sympathy much more so in an age when even the rich commit economic offences to get richer and do so by and large with impunity.
26. In this connection we may refer to decision of the Hon'ble Supreme Court in the case of Ranjeet Thakur v. Union of India, . In the aforesaid decision the Hon'ble Supreme Court has inter alia, observed that irrationality and perversity (of punishment) are recognised grounds of judicial review. The Hon'ble Supreme Court referred to its earlier decision in the case of Bhagat Ram v. State of Himachal Pradesh, . Therein at page 460 the Hon'ble Supreme Court has inter alia observed as followe:
It is qually true that the penalty Imposed must be commensurate with the gravity of the miscounduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.
27. After reiterating the aforesaid principle, the Hon'ble Supreme Court in the case of Ranjeet Thakur (supra) further observed:
The point to note and emphasise is that all powers have legal limits.
In this case the competent authority has exercised the power of imposing penalty without recognising the limits of the powers and the manner in which it was required to be exercised. Requirement to indicate good and sufficient reasons for selecting particular penalty, is itself a sufficient check on the exercise of power in unjust, unreasonable and/or arbitrary manner. In view of this settled legal position and having regard to the facts and circumstances of the case, we are of the opinion that it would be proper to pass an appropriate order of penalty by this Court.
28. As indicated hereinabove, the workman has suffered the pangs of protracted litigation. Practically he is out of job since 1978 except with a break of few months during the years 1981-82. Having regard to the over all facts and circumstances of the case, we are of the opinion that imposition of penalty of withholding of three increments with future effect will meet the ends of justice. It may be noted that withholding of three increments with future effect will have cascading effect and it will even affect the amount of terminal benefits which may be received by the petitioner workman. So far as the back wages are concerned, we are of the opinion that payment of 50% of the back wages would be just and proper. It may be realised that during the course of 12-15 years (from 1978 to 1995) the intransic value of money has been considerably eroded. The payment of 50% of the back wages now, after a period of more than a decade would have considerably less intransic value. Thus the payment of 50% of the back wages would not in fact be payment of 50% of the back wages in real terms. It would be considerably less.
29. In the result, the appeal filed by the Corporation being D.B. Civil Special Appeal No. 795/94 is dismissed. The appeal filed by the petitioner workman being D.B.Civil Special Appeal No. 210/94 is allowed. The judgment and order passed by the learned Single Judge is modified and the decision of the learned Single Judge holding that the order of punishment was not just and proper is confirmed but for different reasons as indicated in the body of the judgment. The penalty imposed by the Disciplinary Authority of removal from service and forfeiture of wages for the period of suspension is quashed and set aside. Instead, the penalty of withholding of three increments with future effect is imposed and the workman is ordered to be reinstated in service immediately, latest by May 31, 1995. If the workman is not actually reinstated in service by the aforesaid date he shall be entitled to claim full wages from June 1, 1995. The workman shall be paid 50% of the back wages by calculating the same as if he was throughout in service during the interegnum period and was entitled to all the benefits which he would have earned had he been in service. The calculation of the 50% of the amount of wages and other monetary benefits payable to the workman as indicated here in above shall be made by the respondent Corporation immediately and the amount shall be paid to the workman latest by July 31, 1995, If the amount is not paid by the aforesaid date, it shall carry interest @ 15% per annum from the date of this judgment till the amount is paid. The appeal of the petitioner workman stands allowed to the aforesaid extent with no order as to costs