Bombay High Court
Mrs. Kalpana Madhusudan Paranjpe vs Municipal Corporation Of Greater ... on 3 October, 2002
Equivalent citations: (2003)105BOMLR426
Author: R.J. Kochar
Bench: R.J. Kochar
JUDGMENT R.J. Kochar, J.
1. The petitioner, an Officer of the B.E.S.T. undertaking of respondent No. 1 is aggrieved by the order of her dismissal from employment dated 19th September, 1997. She has approached this Court under Article 226 of the Constitution of India read with Articles 14 and 21 and the provisions of the Bombay Municipal Corporation Act, 1 888 praying for setting aside the order of dismissal and for reinstatement with full backwages and continuity of service. The petitioner being not governed by the provisions of the Bombay Industrial Relations Act, 1946 is not covered by the definition of "employee" and therefore, she could not approach the Labour Court constituted under the said Act for the relief which she is seeking for the first time before this Court.
2. The petitioner joined the service of the undertaking in March, 1977 as a Clerk. In April, 1 992 she was promoted to the post of Officer Grade AG VIII and was posted in Materials Management Department. In October, 1996, she was transferred from that Department to the Traffic Department as Office Assistant in the Ghatkopar Depot. Soon thereafter, she was again transferred in December, 1996 to Traffic Department at Anik Depot. The petitioner has specifically averred that till March, 1997 she had cordial relationship with her superiors. She has further specifically averred that from March, 1997, her relationship got strained on account of certain events which took place in her family and she was brought in trouble at the instigation of one Shri Madhav Vinayak Vaidya, an Ex Internal Auditor of the undertaking who happened to be a close friend of Shri Madhav A. Shanbhag, the Additional General Manager of the undertaking. She has alleged that the said Shri Vaidya was a witness in the forged and fraudulent will made by her father-in-law, who was Ex Chief Personnel Officer of the undertaking. She has alleged that the said Shri Vaidya was directly involved into the various civil litigations and criminal proceedings and was subjected to criminal prosecution on account of his involvement and connections with the forgery of the Will. She has also alleged that Shri Vaidya had approached Shri Shanbhag to prevail upon the petitioner to withdraw the criminal complaint against him. She has also averred that Shri Shanbhag had called the petitioner and tried to persuade her to withdraw the complaint. Since it was a serious matter relating to the family and the family property, the petitioner expressed her inability to do anything of the kind as per the wishes of the Additional General Manager, Shri Shanbhag. The petitioner has, therefore, alleged that on account of her not acceding to the request of Shri Shanbhag, he was very much annoyed and was displeased with her and, thereafter, her stars in the service started frowning upon her. According to the petitioner, she was deliberately subjected to the harassment which finally resulted in the extreme punishment of dismissal from employment on the ground of her alleged absentism and unauthorised leave for a total of 15 days on different occasions. The petitioner has taken very serious exception to the extreme punishment of dismissal, being totally mala fide and colourable exercise of powers vested in the employer. She has alleged ulterior motives against the management of the undertaking while imposing the extreme punishment of dismissal for the alleged act of her unauthorised absence for a total number of 8 1/2 days. According to the petitioner she had applied for leave and that she was not away from the employment without any intimation.
3. The petitioner was served with a charge-sheet dated 20th June, 1997 alleging that she had taken privilege leave for the period from 31.3.1997 to 4.4.1997 without prior authorisation. It was also alleged that she was informed about the regretted leave for half day of 7.4.1997 and privileged leave from 9.4.1997 to 11.4.1997. She tried to show wrong information on attendance record and that on 7.4.1997 she left the office without permission, though she was informed about the half day's regretted leave and that she remained absent from 9.4.1997 to 11.4.1997 though her leave was regretted. It was also alleged that on 29.4.1997 during her visit to the Anik Depot Office she did not produce the attendance record when the Senior Administrative Officer, Traffic told her to do so. It was also mentioned in the said charge-sheet that in the evening of 2nd May, 1997 it was informed that the said record was lost. In the very same charge-sheet she was further informed that in the past, she had taken privilege leave on 19th December, 1996 and 20th December, 1996 as per the Report of the Internal Audit Department but it was not mentioned in the absentee memo of the concerned month. It was further alleged that in the absentee memo, the petitioner had mentioned leave taken on 6th December, 1996, 9th December, 1996 and 26th December, 1996. It was alleged that while cheeking the dispatch notes the leave forms of the aforesaid days were not filled in. The aforesaid allegations were to be under the heads of the misconducts as :-
1. To fill up purposely wrong/false information in attendance record;
2. Carelessness in work;
3. To misplace record;
4. To leave the place of work without permission;
5. To disobey lawful and proper orders of senior/higher officers.
4. The petitioner was called upon to submit her written explanation and to remain present before the Enquiry Officer. By her written explanation dated 2nd July, 1997, the petitioner made an allegation of victimisation and vindictiveness for having issued the said charge-sheet deliberately as she was being considered for promotion to the post, of officer in Grade AG-IX on 23rd July, 1997. On account of the said charge-sheet, her interview for promotion would be adversely affected. She has also explained in minute details, the other charges of absentism or leave. She has explained how she was not guilty of any act of misconduct and that she was being framed for her refusal to oblige the Additional General Manager.
5. It appears that the respondent's administration was not satisfied with the said written explanation and, therefore, a departmental enquiry was instituted against her in the aforesaid charges. Procedurally, the petitioner was given an opportunity of defending herself before the Enquiry Officer but the petitioner preferred to defend herself. It further appears that she had fully participated in the enquiry. It further appears that some documents which were required by her were not produced before the Enquiry Officer, according to the petitioner. Her second grievance appears to be that the Enquiry Officer did not furnish to her a copy of the findings or the report of the enquiry before imposing the punishment of dismissal. According to her, on 19.9.1997 when she attended enquiry, the Enquiry Officer handed over the order of punishment and that she had no opportunity of making representation against the proposed punishment of dismissal. The petitioner has not made any other grievances in respect of the conduct of the Enquiry Officer. The petitioner, however, has pleaded that the findings of the Enquiry Officer are perverse and they do not flow from the evidence. She has also pleaded that the extreme punishment of dismissal is harsh, shockingly disproportionate and amounts to mala fide act and victimisation as stated hereinabove.
6. It further appears that the petitioner filed her first appeal before the respondent No. 3 i.e. the Traffic Manager. The said appeal was rejected on 3rd November, 1997. Against the said order, the petitioner preferred second appeal before the Second Appellate Authority. The same was also dismissed on 16th March, 1998. After exhausting the aforesaid remedies, the petitioner has approached this Court under Article 226 of the Constitution of India.
7. Shri Ganguli the learned Advocate for the petitioner has assailed the impugned order of dismissal of the petitioner on the following grounds :-
(i) Factually the petitioner had not committed any act of misconduct as alleged against her. According to Shri Ganguli, it is clearly borne out from the record that though the petitioner was away from work from 31.3.1997 to 4.4.1997, on account of the annual examination of her son, she reported on duty on 7.4.1997 and applied for leave. Shri Ganguli pointed out that since the dates of the examinations were not declared earlier, the petitioner could not apply for leave in advance for the aforesaid period. On 7.4.1997 the petitioner had also applied for half day's leave and she had also applied for leave from 9.4.1997 to 11.4.1997. According to the petitioner, she had informed on telephone to the Head of the Department Anik Depot about her absence from 31.3.1997 to 4.4.1997 on account of examination of her son and that he gave oral permission on telephone to take such leave. On 7.4.1997, the petitioner required half day's leave as she had urgent work. She was orally allowed to leave after half day. Again for the leave from 9.4.1997 to 11.4.1997, the petitioner had sought prior permission on 7.4.1997 itself as she had to attend Court matter. In the aforesaid situation, Shri Ganguli submits that the petitioner was careful to apply for leave as aforesaid in the given situation. The petitioner, according to the learned Advocate, was neither negligent nor careless in that regard nor was she unauthorisedly absent and hence it cannot be said that she committed the alleged misconduct. Shri Ganguli also submitted that rejection of her leave was communicated to her on 22.4.1997.
(ii) According to Shri Ganguli under Section 460(v) and 460(u) read with Section 68(b) of the Bombay Municipal Corporation Act, the General Manager being the Appointing Authority is the Competent Authority to initiate a disciplinary proceeding against the employees according to their grades or categories. In the case of the petitioner, though the General Manager has powers to delegate his authority to other officers, no such delegation of his power was given to the concerned officer who had initiated the disciplinary proceedings. Shri Ganguli submitted that there has always been such delegation in case of individual officers whenever such occasion arose but in the case of the petitioner, there was no such specific delegation given to the Assistant Traffic Superintendent who issued the charge-sheet and who himself was the Enquiry Officer and who himself had passed the dismissal order. According to Shri Ganguli, the impugned order of dismissal was without authority of law.
(iii) Under the service rules, misconducts are not specifically enumerated and, therefore, any alleged act of misconduct without there being specific rules in that respect no post facto act can be considered as misconduct for disciplinary proceedings. Shri Ganguli further submitted that the enquiry was in violation of the principles of natural justice as the documents which were requested to be produced were not produced and, therefore, the petitioner was handicapped to defend herself.
(iv) The petitioner was not furnished with a copy of the Report of the Enquiry Officer to enable her to submit her representation before she was imposed the punishment of dismissal.
(v) The findings of the Enquiry Officer are perverse as the misconduct alleged against the petitioner was not proved from the material on record.
(vi) The Enquiry Officer himself had signed the absentee memo of the petitioner for December, 1996 and, therefore, he was a witness to the charge of the absentism and, therefore, he was not a proper person to hold an enquiry against the petitioner.
(vii) Shri Ganguli further submitted that as far as the past leave record of the petitioner is concerned, leave was taken by her but it did not appear in the Absentee Memo, though her Attendance Sheet had correctly reflected her absence and, therefore, there was no question of taking leave without permission on 19th December and 20th December, 1996. Similarly Shri Ganguli, pointed out that on 6th December, 9th December and 26th December, 1996 Absentee Memos clearly showed her absence but no leave forms were found. Attendance Sheets, however, correctly showed her absence and it had correctly tallied with the Absentee Memos. The leave applications, were, however, not available.
(viii) Shri Ganguli further submitted that the petitioner was given promotion in the year 1992 and, therefore, she was considered to be a fit person to be promoted as there was nothing serious against her. Shri Ganguli, further submitted that the so-called misplaced attendance files or loss of the files is totally false. The files were with the superior of the petitioner in his cabin. The petitioner was sitting outside when the query was made to her and she had told the officer that the file was with the Traffic Superintendent inside the cabin.
(ix) Shri Ganguli further submitted that assuming that the absence of the petitioner is taken to be unauthorised, for the total period of 8 1/2 days, the extreme punishment of dismissal is very harsh and shockingly disproportionate and the same was sufficient to draw an inference of legal victimisation and the contention of the petitioner is justified that she was being vindictively dismissed for such an act of absence for total 81/2 days. Shri Ganguli, however, hastened to add that she had not remained absent without permission or without, making an application after reporting for duty as pointed out hereinabove. Shri Ganguli has seriously made a grievance against the proportionality of the punishment as against the act of misconduct alleged against the petitioner and even assuming it to have been proved.
8. Shri Talsania, the learned Counsel for the respondents has reminded this Court of the restricted and limited jurisdiction under Article 226 of the Constitution of India. He has reminded me of the narrow scope of the judicial review of the administrative actions taken by the respondents. He has relied upon the following two judgments of the Supreme Court :-
(i) Union of India v. Parma Nando with Parma Nanda v. State of Haryana and Ors. .
(ii) Apparel Export Promotion Council v. A.K. Chopra .
Shri Talsania further submitted that the enquiry was perfectly in accordance with the principles of natural justice. The statement of the witnesses were recorded by the Enquiry Officer but the petitioner had not cross-examined them. The petitioner never demanded documents as alleged by Shri Ganguli to attack the fairness of the enquiry. Shri Talsania pointed out that the petitioner had demanded some documents at the stage of second appeal and not during the course of the enquiry. He further submitted that all the documents on which the administration had relied upon were furnished to the petitioner and the petitioner has not shown any prejudice caused to her on account of non receipt of such documents.
9. Shri Talsania further submitted that the petitioner has not shown any prejudice caused to her because she was not furnished a copy of the report of the Enquiry Officer. According to Shri Talsania, this was not a requirement when the Enquiry Officer and the Punishment Authority are one and the same. The two stages are contemplated when the Disciplinary Authority is other than Enquiry Officer.
10. Shri Talsania further submitted that the petitioner had remained absent without prior permission and had chose to walk away without waiting for her leave getting sanctioned. She was specifically asked not to leave without completing the work. Her work was of importance in the sense that she was in charge of leave record, petty cash and wages to he paid to casual labourers. During the relevant period, her presence was necessary. Shri Talsania submitted that she had defied the lawful and reasonable orders of her superiors.
11. The learned Counsel further pointed out that her past record was also unsatisfactory and that she was subjected to seven days suspension twice. Her case was considered in two appeals and the order of dismissal was found proper and legal by the appellate authorities. The petitioner never raised the point, of competence of the Enquiry Officer during the course of the enquiry. As far as the competence of the Disciplinary Authority to hold the enquiry and to punish the petitioner, Shri Talsania, submitted that the Additional General Manager had authority to delegate his powers and he had delegated such powers generally by Circular dated 19th February, 1991. Shri Talsania submitted that it was not necessary that in each and every case special or specific delegation of power should be given, though it was a fact that sometimes it was done in the past. Shri Talsania also submitted that the concession made before Justice S.K. Shah in one of the matters did not bind the respondents as it was a mistaken concession by the Counsel based on incorrect instructions given to him. Shri Talsania heavily relied upon the Circulars dated 9th January, 1984 and 19th February, 1991 to establish that the Disciplinary Authority which had initiated the disciplinary proceedings was competent under the law to impose the punishment on the petitioner. As far as the enumeration of the misconduct is concerned, Shri Talsania pointed out that the acts of misconduct alleged against the petitioner can be certainly termed as misconducts and that there was no manner of doubt in that respect. The Talsania finally prayed for dismissal of the petition.
13. Both the learned Counsel have relied upon numerous judgments in support of their respective submissions.
14. I do not find any merit and substance in the contention of Shri Ganguli regarding delegation of powers is concerned, as there has been a Departmental Circular dated 9th January, 1984 issued by the General Manager under Section 68(B) read with Sections 460(v) and 460(u) of the B.M.C. Act delegating powers of taking disciplinary action to the extent mentioned therein in respect of the officers scheduled and non scheduled employees etc. There is no dispute that the General Manager under the said provisions had powers to delegate his authority to the other officers of the undertaking. This has been a general power of delegation vesting the powers of the General Manager to be exercised by each officer on behalf of the General Manager for taking disciplinary action against the officers and the employees. By another Circular dated 19th February, 1991, the General Manager has delegated his powers and has notified as Competent Authority, certain officers under Service Regulation No. 2.5 under the aforesaid provisions of the B.M.C. Act. In my opinion, when there is general power of delegation delegating the authority to the specified officers it is not necessary and required that in each case, such power has to be delegated to a particular officer by his name as is contended by Shri Ganguli without pointed out any specific provision of law on that count. There is no dispute that in the past there have been such instances of special or specific delegation of powers. There is also no dispute that in the case before Justice S.K. Shah, there was a concession given by the learned Counsel for the respondents. According to me, the said concession appears to have been given by the learned Counsel for want of proper communication of instructions. In any case, such concession will not act as estoppel or cannot be treated as a precedent that in each and every case the General Manager should continue to pass special delegation of powers though he has already issued the general orders delegating the powers specifying the officers who have been empowered to exercise his powers of taking disciplinary action. In the affidavit-in-reply the respondent administration have explained under what circumstances, the concession was made by the learned Counsel. It is clear that it was a mistaken concession as the aforesaid two Circulars issued by the undertaking delegating powers were not brought to the notice of the learned Counsel. There was a communication gap between the officer and the Counsel. That concession does not wipe out the general power of delegation given by the General Manager in the aforesaid two Circulars In the past and they are in force even as on the date. In the present case, the contention of the petitioner is that no special or specific power of delegation was given to the Disciplinary Authority which had initiated the disciplinary proceedings against the petitioner and, therefore, according to the petitioner, the entire action taken against her is vitiated. I do not find any merit in the said contention of the petitioner, when there has been undisputedly two general powers of delegation issued by the General . Manager specifying the officers who are empowered to take disciplinary action under the provisions of law including the service regulations.
14. The law on the point of such concessions made by the Counsel has been considered by the Supreme Court in the case of Periyar and Pareekanni Rubbers Ltd. v. State of Kerala as under :-
...Any concession made by the Government Pleader in the Trial Court cannot bind the Government as it is obviously, always, unsafe to rely oil the wrong or erroneous or wanton concession made by the Counsel appearing for the State unless it is in writing on instructions from the responsible officer. Otherwise it would place undue and needless heavy burden on the public exchequer. But the same yardstick cannot be applied when the Advocate General has made a settlement across the Bar since the Advocate General makes the statement with all responsibility.
15. There is no merit in the second submission of Shri Ganguli that the enquiry was not fair and proper. From the perusal of the entire record, it is clear, that the petitioner was served with a charge-sheet and explanation was called from her. She had submitted her explanation and had participated in the enquiry. She was offered the witnesses for cross-examination, though she might not have availed of that opportunity. The petitioner was also furnished whatever documents were relied upon by the Enquiry Officer. Procedurally, therefore, I do not. find any fault with the enquiry. I do not find any infraction or violation of the principles of natural justice in holding the enquiry against the petitioner. The enquiry has to be held to be fair and proper.
16. I also do not find any substance in the contention of Shri Ganguli that, the Report of the Enquiry Officer was required to be furnished to the petitioner by the Enquiry Officer before imposing the punishment of dismissal. The law on this point is very clear and I need not reproduce any authorities in that respect. When the Enquiry Officer is different from the Disciplinary Authority, in that case a copy of the report of the Enquiry Officer should be given to the delinquent employee to enable him to put forth his case against the version of the Enquiry Officer given in his Report. The Disciplinary Authority in that case considers the Report of the Enquiry Officer and also considers the representation made by the delinquent employee to come to his own conclusion. It is not the law and requirement when the Enquiry Disciplinary Authority and the Enquiry Officer are one and the same authority. In the present case, the Disciplinary Authority itself has issued a charge-sheet, has held the enquiry and has imposed the punishment of dismissal on the petitioner. In such cases, it is not mandatory on the part of the Disciplinary Authority to give the Report of the Enquiry Officer to the delinquent employee before passing of the final order of punishment. The Disciplinary Authority considers the entire material and evidence on record of the enquiry and comes to its own conclusion to impose or not to impose any punishment on the delinquent employee. Besides, the Supreme Court has reiterated the law that even when Report of the Enquiry Officer is not furnished to the delinquent employee, the latter has to show and satisfy the Court in what way prejudice was caused to him or her in the absence of the Report of the Enquiry Officer having been furnished before the imposition of the punishment. In the present case there is absolutely no prejudice shown by the petitioner. I, therefore, do not find any substance in this contention of Shri Ganguli.
17. As far as the question of mala fides and ulterior motives imputed by the petitioner on the Additional General Manager, Shri Shanbhag is concerned, it is possible that some such events might have taken place. The petitioner has not made any vague or ambiguous allegations in respect of mala fides or ulterior motives. She has named both of them and has given sufficient particulars to be able to consider the charge of mala fides. It is significant to note that none of them has filed affidavit to deny or to refute the serious allegations against them. It was for Shri Shanbhag to have denied on oath that Shri Vaidya had never tried to persuade him to pressurise the petitioner in any manner and that he had tried so with her. The factual foundation of the allegations have remained not shaken or challenged. There is no dispute that Shri Vaidya, being Internal Auditor of the undertaking, was an accused person in the case pending before the Criminal Court in respect of Will of the father-in-law of the petitioner. It is also possible that he might have tried to use the good offices of Shri Shanbhag to have a compromise or compounding of the offices alleged against him. He has also not filed his affidavit to rebut the charge of the petitioner. In such cases there cannot be any concrete or documentary evidence. We have to infer from the circumstances. The allegations of mala fides get good support if we consider the proportionality of the punishment imposed on the petitioner. The petitioner has put in service from 1977 onwards. By and large her record has been good barring a few infractions in the past. The petitioner could not be said to be a bad officer as the administration itself had considered her to be fit for promotion and had promoted her. This aspect, however, also shows that when she was promoted the administration had acted in good faith and bona fide without bearing any grudge of any nature against the petitioner in respect of her past record. It is not mere coincidence that the petitioner felt that she was being subjected to harassment, no sooner she declined to withdraw the criminal case against Shri Vaidya who held a high position of Internal Auditor in the undertaking and who could wield some influence on Shri Shanbhag. the Additional General Manager to get himself out of the clutches of the criminal proceedings which were initiated at the instance of the petitioner. The petitioner has not complained of any harassment or ill-treatment or an act of victimisation prior to 1997. Somewhere in the month of March, 1997, the events accelerated up which ended in the petitioner's dismissal, for the reason of her refusing to withdraw the allegations against Shri Vaidya by not heeding the pressure of the Additional General Manager. Since there was nothing found against the conduct of the petitioner, no other allegations could be made against the petitioner, I do not condone her proceeding on leave when she was specifically told to complete the work which was of importance. She ought to have completed the work on 7th April, 1997 and she ought not to have taken leave on 9th April upto 12th April, 1997 which she took on the ground of court, case. As far as her remaining at home for the purpose of taking care of her school going son from 3 1st March, 1997 for five days, we have to take a very lenient view particularly in respect of the class of the working ladies who are to shoulder the double responsibilities and who have to play a duel role in the life. As a mother it was her duty to take full care and to protect her son during the delicate examination period. Had she known in advance the examination dates, she would have surely made an application before taking such leave. She being a responsible officer, 1 believe her statement that she had telephoned her superior for the purpose of leave. We cannot presrime that people always behave irresponsibly or that they turn bad over night. Her past record has been by and large good. She had never been disobedient or negligent in her working in the past. Very often in life people get caught in such a vulnerable situation which compel them to act in a particular manner which surely goes against the simple working of the administration. We, therefore, have to bear in mind that law is not life. Besides, it is not that she had remained absent for a very long period without, any intimation or without getting her leave sanctioned. She has surely taken care to apply for leave even after her absence without intimation. We have to be more considerate as far as the working women are concerned. We must appreciate that they are always required to work for two establishments viz., office and house. Furthermore, the unfortunate circumstances of the Will of her father-in-law placed her in a very crucial situation where she was required to litigate in Criminal Court. We cannot lose sight of a mandatory rule that municipal servant is permitted to remain away from duty upto a period of five years. In the present ease, it is only question of 81/2 days assuming that she was guilty of such an act of misconduct. In my opinion, the punishment of dismissal inflicted by the respondent in such circumstances is harsh and shockingly disproportionate which can be covered under the term "legal victimisation" as evolved by the Supreme Court in the case of Colour-Cham Ltd. v. Alaspurkar A. L. and Ors. . In the context of the industrial jurisprudence the Kernel of the term victimisation has remained the same as explained by the Supreme Court in the case of Hind Construction and Engineering Co. Ltd. v. Workmen as under :-
But where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimisation or unfair labour practice.
In the later case of Colour-Chem Ltd. (supra) the Supreme Court has not only reiterated the above concept of victimisation as basic but has further observed that it holds the field and is not whittled down by any subsequent statutory enanctments. The Supreme Court, however, has further crystallised the concept and has added to it an entirely new dimension of "legal victimisation", without changing the shades or shadows of the original term "victimisation". The Supreme Court in that case has observed as under :-
Thus if a person is made to suffer by some exceptional treatment- it would amount to victimisation. The term "victimisation" is of comprehensive import. It may be victimisation in fact or in law. Factual victimisation may consist of diverse acts of employers who are out to drive out and punish an employee for no real reason and for extraneous reasons. As for example a militant trade union leader who is a thorn in the side of the management may ostensibly different reason. Such instances amount to unfair labour practices on account of factual victimisation. Once that happens Clause (a) of Item 1 of Schedule IV of the Act would get attracted, even apart from the very same act being covered by unfair labour practices envisaged by Clauses (b), (c), (d) and (e) of the very same Item 1 of Schedule IV. But it cannot be said that Clause (a) of Item 1 which deals with victimisation covers only factual victimisation. There can be in addition legal victimisation and it is this type of victimisation which is contemplated by the decision of this Court in Hind Construction. It must, therefore, be held that if the punishment of dismissal or discharge is found shockingly disproportionate by the Court regard being had to the particular major misconduct and the past service record of the delinquent or is such as no reasonable employer could ever impose in like circumstances, it would be unfair labour practice by itself being an instance of victimisation in law or legal victimisation independent of factual victimisation, if any.
Though the judgment was in the case under the M.R.T.U. and P.U.L.P. Act, 1971 which codified the term "victimisation" as exactly envisaged by the Supreme Court, the whole concept even can be applied to the cases under the service jurisprudence while considering the question-of legality and propriety of an order of dismissal under Article 226 of the Constitution of India. It is rather immaterial as to under what law the case was filed or considered, may be an industrial law or may be under Article 226 of the Constitution of India. If it is a question of employment or service, the concept of victimisation would be the same without any change as stated in the Colour-Chem (supra) as under :-
...It has been observed that ordinarily a person is victimised if he is made a victim or a scapegoat and is subjected to persecution, prosecution or punishment for no real fault or guilt of his own. If actual fault or guilt meriting punishment is established, such action will be rid of the taint of victimisation. The aforesaid observations obviously refer to factual victimisation. But then follows further elucidation of the term "victimisation" to the following effect: (S.C.R. Headnote) Victimisation may partake of various types, as for example, pressurising an employee to leave the union or union activities, treating an employee in a discriminatory manner or indicting a grossly monstrous punishment which no rational person would impose upon an employee and the like.
The aforesaid observations in this decision fall in line with the observations in the earlier decision of this Court in Hind Construction. Consequently it must be held that when looking to the nature of the charge of even major misconduct which is found proved if the punishment of dismissal or discharge as imposed is found to be grossly disproportionate in the light of the nature of the misconduct or the past record of the employee concerned involved in the misconduct or is such which no reasonable employer would ever impose in like circumstances, inflicting of such punishment itself could be treated as legal victimisation."
...By imposing such grossly disproportionate punishment on the respondents, the appellant-management had tried to kill a fly with a sledgehammer....
18. In the aforesaid circumstances, and for the reasons recorded by me hereinabove, I agree with the submissions of Shri Ganguli that the order of dismissal is riot commensurate with the act of proved misconduct and the same is far out of proportion. Like the principles of natural justice, even the law of proportionality has universal application. Every action or reaction must be proportionate and it cannot cross the sensible boundaries of proportionalities. In the present case, the reaction of the administration was excessive in dismissing the petitioner. Applying the test of a reasonable employer as suggested even in the case of Colour-Chem (supra), in my opinion, in the given facts and circumstances, no such action could have been contemplated by such a reasonable employer. I have absolutely no doubt that the impugned order of dismissal of the petitioner is arbitrary and unreasonable which is also hit by Articles 14 and 21 of the Constitution of India. Arbitrariness is anti-thesis of proportionality. Any action which is disproportionate is bound to be condemned as arbitrary and unreasonable. The petitioner was not guilty of very serious act of misconducts viz., an act of violence or misappropriation of money, theft of the employer's property or some such heinous acts. In such matters, surely, no lenient view can be taken. The present case is the case of absence of the petitioner even assuming without authorisation, which cannot be equated with such heinous misconducts which can never be condoned. Considering elaborately all the aspects of the matter from the angle of doing justice I hold that the action of the respondents in dismissing the petitioner suffers from arbitrariness, unreasonableness and the same is shockingly disproportionate which has to be struck down under Article 226 of the Constitution of India as indeed, the respondents tried "to kill a fly with a "sledge-hammer" by imposing the punishment of dismissal on the petitioner. Not to do so would be miscarriage of justice.
19. I am fully conscious of the parameters of the judicial review under Article 226 of the Constitution of India. There is, however, no prohibition to strike down an action of the employer which is shockingly disproportionate and which shocks the conscience of the Court. To dismiss a lady who was in employment from 1977 for the alleged act of 8 1/2 days absence in total has shocked my conscience. The extreme order of dismissal of the petitioner has also to be read with the allegation made by the petitioner to base her case on the ulterior motives of the administration. I have already held that there cannot be any documentary or concrete evidence to prove charge of mala fides levelled by the petitioner. However, the facts which are disclosed by her, are sufficient for me to draw an inference of legal victimisation which gets support from the shockingly disproportionate order of dismissal passed by the respondents in the given circumstances. Victimisation and shockingly disproportionate order of dismissal are the two inseparable sides of one coin. The next logical result as held by the Supreme Court in the case of Colour-Chem (supra) is reinstatement with continuity of service as under :-
So far as this point is concerned it has to be held that when the a punishment of dismissal was shockingly disproportionate to the charges held proved against them reinstatement with continuity of service was the least that could have been ordered in their favour.
20. It is riot that the Supreme Court has totally put an embargo on the High Court not to interfere with each and every punishment imposed by the employer. The Supreme Court has unequivocally made an exception to interfere with the punishment orders where the punishments are shockingly disproportionate and when conscience of the Court is shocked. The following observations of the Supreme Court in the case of Apparel Export Promotion Council (supra) are clear on the point which are reproduced hereinbelow :-
Para 16 : ...Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an Appellate Authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even in. so far as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty.
In respect of the punishment to be imposed on a delinquent who might be either a Government, servant or an industrial worker or officer or an employee of any statutory corporation as is in the present case, there is hardly any departure from the principle that the punishment should be commensurate with the proved misconduct and that it should not be shockingly disproportionate. The Supreme Court has reiterated this position in the ease of Colour-Chem (supra). The principle that the punishment should not. be shockingly disproportionate has been very well established, judicially as also legislatively under various labour laws. Punishment cannot, be divorced from reason, rationale and proportion. The underlying philosophy of the punishment is that the delinquent should be given an opportunity to improve and reform herself or himself. Every case of punishment should be considered from the angle of the approach that would be adopted by the parents while punishing their erring child. Under the service rules applicable to the officers of the undertaking, there are several punishments which are prescribed under Rule 10(2) viz.. warning, fine, reduction in payscale, suspension, demotion, dismissal or discharge. The petitioner might have attracted any of the other mode of punishment, than that of dismissal or discharge but certainly not the extreme punishment of dismissal.
21. In the aforesaid circumstances, the petitioner is entitled to the relief of reinstatement with continuity of service. I am, however, not inclined to grant her full backwages for the entire period. I have already held that the charges of absentism levelled against, her amounted to an act of misconduct, thought not specifically enumerated in the aforesaid rules. It requires hardly any commonsense to pronounce that her behaviour of proceeding on leave without prior intimation and without sanction and without completing her work amounted to an act. of carelessness or against the discipline of the undertaking. It would be advisable for the respondents to prepare and apply precise acts of misconducts as is the case in respect of the categories of the employees. She ought to have been more careful while performing her duties. In the case of Colour-Chem (supra), the Supreme Court having confirmed the finding of punishment shockingly disproportionate has ordered reinstatement with continuity of service but has denied 50% of backwages to act as deterrent so that the employees did riot committ such misconducts in future. Besides, there is another factor which also requires serious consideration. I was informed by Shri Talsania, the learned Counsel for the respondents that at the time of admission of the petition, the petitioner was offered reinstatement without, backwages but it appears that she did not accept the said offer. In my opinion, she ought to have accepted it. Before me 1 had also tried to prevail upon Shri Talsania to persuade his clients to reinstate the petitioner leaving the question of backwages to the Court. Shri Talsania fairly agreed to reinstate the petitioner under instructions from his clients. At this stage itself he has disclosed the aforesaid fact which transpired at. the time of admission of the petition. He, however, did not wish to leave the question of backwages to the Court. To deny full backwages after holding the dismissal order as shockingly disproportionate would also be: totally unjust in the given circumstances.
22. The impugned order of dismissal of the petitioner is quashed and set aside, I, therefore, grant reinstatement with continuity of service to the petitioner with 75% backwages and all consequential benefits. Denial of 25% backwages for the absence of 8 1/2 days would be more than sufficient deterrent penalty for the petitioner. Rule is made partly absolute and the petition is partly allowed with no orders as to costs.
23. The respondents shall reinstate her and give the amount of 75% backwages to the petitioner within one month from today. C.C. of this judgment is expedited.