Bombay High Court
Nehru Science Centre vs G. K. Maliye on 2 April, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:15572
wp400-2010-J.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.400 OF 2010
ATUL Nehru Science Centre,
GANESH
KULKARNI Dr. E. Moses Road, Worli,
Digitally signed by
ATUL GANESH
KULKARNI
Mumbai 400 018 ... petitioner
Date: 2026.04.02
12:45:02 +0530
Vs.
G.K. Maliye,
153, Nagin Nagar, Sitaram Jadhav Marg,
Lower Parel, Mumbai 400 013 ... respondent
Mr. Vijay Vaidya with Mr. Vipul Patel i/by M/s. Haresh
Mehta & Co., for the petitioner.
Mr. Jayprakash Sawant i/by Mrs. Ranjana Todankar for
the respondent.
CORAM : AMIT BORKAR, J.
RESERVED ON : MARCH 26, 2026.
PRONOUNCED ON : APRIL 2, 2026
JUDGMENT:
1. By the present writ petition instituted under Articles 226 and 227 of the Constitution of India, the petitioner calls in question the legality, propriety and correctness of the Awards dated 22 May 2003, 13 May 2008 and 7 August 2009 passed by the Presiding Officer, Central Government Industrial Tribunal No. 2, Mumbai. By the said Awards, the Tribunal has answered the reference in favour 1 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc of the respondent and has directed the petitioner to reinstate the respondent in service to his original post of Painter Technician, together with payment of back wages to the extent of 50% for the period commencing from 22 February 2000 till the date of actual reinstatement.
2. The facts and circumstances giving rise to the present writ petition, as set out by the petitioner, are that the respondent came to be appointed as a Senior Mechanic with the petitioner by an appointment letter dated 23 February 1982. Clause 10 of the said appointment letter specifically stipulated that the services of the respondent were transferable and that he could be posted to any Museum, Centre or Kendra under the administrative control of the petitioner, as and when required. In pursuance of the aforesaid condition of service, the respondent was transferred from Mumbai to Bhopal by an order dated 21 June 1990. Consequent upon such transfer, his name was deleted from the muster roll of the Mumbai office of the petitioner by Office Memorandum dated 22 June 1990. Despite issuance of repeated memoranda calling upon the respondent to report for duty at Bhopal, the respondent failed and neglected to comply with the said directions, thereby remaining absent from duty at the transferred place.
3. In view of the continued non-compliance on the part of the respondent, a charge-sheet dated 27 November 1997 came to be issued to him, containing four distinct articles of charge, namely:
that the respondent had refused to report at the place of transfer and thereby disobeyed lawful orders issued by his superiors; that he had remained absent from the place of transfer for a prolonged 2 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc period of nearly seven years without obtaining leave or furnishing any intimation, thus conducting himself in a manner unbecoming of an employee; that he had attempted to interfere with and influence the transfer order by exerting political pressure, in contravention of Rule 20 of the applicable Service Rules; and that he had participated in a morcha, thereby indulging in acts amounting to indiscipline and insubordination. The respondent submitted his reply to the charge-sheet on 2 December 1997. The said reply, however, did not disclose any cogent or tenable explanation to the charges levelled against him and, instead, consisted largely of allegations directed against the petitioner. A departmental enquiry was thereafter conducted in accordance with the prescribed procedure. The respondent participated in the enquiry proceedings, though he raised objections which were found to be untenable and were rejected by the Inquiry Officer by a reasoned order. The respondent was extended adequate opportunity to defend himself, including the facility of a translator for translating the proceedings and recording of evidence in Marathi. The enquiry proceedings bear the signature of the respondent. The contention raised by the respondent that documents were supplied to him for the first time during the enquiry is not borne out by the record and stands contradicted, particularly in light of the detailed reply submitted by him to the charge-sheet.
4. Upon completion of the enquiry, the Inquiry Officer recorded a finding that the charges levelled against the respondent stood proved. A copy of the enquiry report was duly furnished to the 3 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc respondent on 1 November 1999. Thereafter, by an order dated 22 February 2000, the disciplinary authority, upon consideration of the findings recorded in the enquiry, imposed the penalty of termination of service upon the respondent.
5. Aggrieved thereby, the respondent preferred an appeal, which came to be partly allowed by the appellate authority by an order dated 3 May 2000, whereby the penalty of termination was modified to that of compulsory retirement. The respondent thereafter raised an industrial dispute challenging the imposition of the said penalty of compulsory retirement, which dispute was referred for adjudication to the Central Government Industrial Tribunal No. 2, Mumbai. The respondent filed his statement of claim seeking setting aside of the punishment, and the petitioner filed its written statement on 15 May 2001 opposing the same.
6. By its Award (Part I) dated 22 May 2003, the Central Government Industrial Tribunal No. 2, Mumbai held that the departmental enquiry conducted against the respondent was vitiated and that the findings recorded by the Inquiry Officer were perverse. The Tribunal thereafter framed issues and permitted the parties to adduce evidence on merits. Upon appreciation of the evidence so adduced, the Tribunal, by its Award (Part II) dated 7 August 2009, set aside the penalty of compulsory retirement and directed reinstatement of the respondent with continuity of service and payment of 50% back wages. Being aggrieved by the said Awards, the petitioner has invoked the writ jurisdiction of this Court.
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7. Mr. Vaidya, learned Advocate appearing for the petitioner, assailed the finding recorded by the Tribunal holding that the departmental enquiry stood vitiated, by submitting that the said finding is ex facie perverse and unsustainable in law. It was contended that the Tribunal has recorded mutually inconsistent and contradictory findings, inasmuch as it has itself observed that the charges levelled against the respondent were not vague, that adequate and reasonable opportunity was afforded to the respondent to defend himself in the enquiry proceedings, and that the respondent was not entitled to subsistence allowance. Having so held, the ultimate conclusion that the enquiry is vitiated is self- contradictory and cannot be sustained. It was further submitted that the respondent was duly assisted during the enquiry proceedings, including by providing the services of a translator and by translating the proceedings into Marathi. The respondent had also appended his signature to the enquiry proceedings. In such circumstances, the finding of the Tribunal that there is no material on record to indicate that the respondent was assisted by a translator is contrary to the record and is liable to be set aside. It was further submitted that the finding of the Tribunal regarding non-supply of documents is erroneous and perverse. The Tribunal has proceeded on the basis that the respondent received the relevant documents only during the course of the enquiry. According to the petitioner, this finding is demonstrably incorrect, as the respondent had, in his reply to the charge-sheet, specifically referred to the documents forming part of the charges, which clearly indicates that such documents were already in his 5 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc possession. It was contended that the Tribunal has travelled beyond the permissible scope of adjudication by examining the merits and validity of the transfer order itself. The legality of the transfer order was not the subject-matter of the disciplinary proceedings, and therefore, the Tribunal could not have adjudicated upon the same while examining the validity of the enquiry. Such an approach is beyond the jurisdiction vested in the Tribunal.
8. Insofar as the misconduct attributed to the respondent is concerned, it was submitted that the admitted position on record is that the respondent failed to report for duty at the transferred place and remained absent for a prolonged period of nearly seven years. Such conduct, it was urged, constitutes grave misconduct and serious insubordination. An employee is under a legal obligation to comply with a lawful order of transfer, and refusal to do so, coupled with continued absence, cannot be countenanced. It was further pointed out that the respondent had earlier challenged the transfer order by filing Complaint (ULP) No. 805 of 1996, which came to be dismissed. Having failed in those proceedings, the respondent could not have been permitted to indirectly challenge the transfer order in the present industrial dispute. With regard to the direction of reinstatement with back wages, learned counsel for the petitioner submitted that even assuming, without admitting, that the enquiry suffered from any procedural irregularity, the Tribunal had permitted both parties to adduce evidence before it. The petitioner, in pursuance thereof, led evidence to substantiate the charges contained in the charge-sheet, 6 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc which, according to the petitioner, stood duly proved. Despite this, the Tribunal proceeded to set aside the punishment and directed reinstatement with 50% back wages. It was contended that such a direction is wholly unsustainable, particularly in a case where the respondent had remained absent from duty for nearly seven years and had refused to comply with a lawful transfer order. The conduct of the respondent clearly indicates abandonment of service. The impugned Award, therefore, suffers from patent errors apparent on the face of the record.
9. It was further contended that the Tribunal has committed a manifest error in refusing to permit the petitioner to amend its written statement so as to raise a legal contention that the petitioner does not fall within the definition of an "industry" under Section 2(j) of the Industrial Disputes Act, 1947. It was reiterated that the relevant documents had already been furnished to the respondent along with the charge-sheet, as is evident from the references made by the respondent in his reply thereto. It was also submitted that the Tribunal has failed to appreciate material aspects, namely, that the enquiry proceedings were translated into Marathi and that an interpreter was provided to the respondent. It was pointed out that various communications addressed by the respondent to the petitioner, which form part of the enquiry record, were in English, thereby indicating his familiarity with the language. Further, the respondent was given an opportunity to be defended by a retired or serving council servant, which he chose not to avail. It was also submitted that the respondent had earlier challenged the transfer order dated 21 June 1990 in Complaint 7 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc (ULP) No. 805 of 1996, which came to be dismissed by the Industrial Court on the ground of lack of jurisdiction, and thereafter, the respondent did not challenge the said order before any competent forum. In view of the aforesaid submissions and preliminary objections, the petitioner has prayed that the Awards dated 22 May 2003 and 7 August 2009 be quashed and set aside, and that the order imposing the penalty of compulsory retirement upon the respondent be upheld.
10. In support of the aforesaid submissions, learned Advocate for the petitioner has placed reliance upon the judgments of the Hon'ble Supreme Court in U.P. Singh vs. Punjab National Bank , reported in (2024) 11 SCC 574, and The Tamil Nadu Agricultural University & Another vs. R. Agila, reported in 2024 SCC OnLine SC 35540.
11. Per contra, Mr. Sawant, learned Advocate appearing for the respondent, supported the impugned Awards. It was submitted that the transfer order dated 21 June 1990 cannot be said to have been issued in public interest. According to the respondent, there was no consent for such transfer, nor was there any administrative exigency warranting the same. It was contended that there was no workshop at Bhopal, nor any team with whom the respondent could have worked in his trade. It was further submitted that the transfer order was received by the respondent only on 5 September 1998. The respondent has characterised the entire action as one of legal victimisation.
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12. It was further submitted that there was an inordinate delay of approximately seven years in initiating and conducting the departmental enquiry, and an additional delay of about thirteen years in leading evidence before the Tribunal in Reference No. CGIT-2/104 of 2000, which, according to the respondent, amounts to violation of principles of natural justice. It was contended that the respondent was deprived of wages and work from June 1990 onwards. It was also submitted that the name of the respondent was struck off from the muster roll with effect from 22 June 1990, and that the enquiry proceedings conducted thereafter, without permitting the respondent to resume duty and without payment of wages or subsistence allowance, are vitiated in law. It was further pointed out that the respondent has attained the age of superannuation on 1 September 2020. On these grounds, it was urged that the writ petition deserves to be dismissed.
13. In support of the aforesaid submissions, learned Advocate for the respondent has relied upon the judgments of the Hon'ble Supreme Court in Delhi Cloth and General Mills Limited vs. Shambhu Nath Mukherji & Others, reported in (1977) 4 SCC 415, P.V. Mahadevan vs. Md. T.N. Housing Board, reported in (2005) 6 SCC 636, and Raghubir Singh vs. General Manager, Haryana Roadways, Hissar, reported in (2014) 9 SCC 301.
REASONS AND ANALYSIS:
14. I have gone through the record and the rival submissions with care. The petitioner says that the respondent was transferred in accordance with the service conditions, that he chose not to join 9 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc at the transferred place, that he stayed away for years together without leave or intimation, and that the departmental enquiry was held in a fair manner. The respondent, on the other hand, says that the transfer itself was not genuine, that it was not made in public interest, that there was delay in taking action, that he was not properly assisted in the enquiry, and that the whole matter is one of victimisation. The Tribunal accepted the challenge of the respondent and granted him relief. The petitioner says that this approach is wrong in law and on facts.
15. The first aspect which immediately comes to mind is the clear condition written in the appointment letter itself. Clause 10 clearly states that the services of the respondent can be transferred to any place under the control of the petitioner. This condition forms part of the service from the very beginning. When a person accepts such appointment, he accepts both benefits and burdens attached to it. It is not open later to accept salary and position, but refuse a condition which was always known. The clause therefore must be given its proper effect.
16. At the same time, it is also correct that transfer power cannot be misused. If a transfer is shown to be done only to trouble an employee, or for some hidden reason, then the Court can step in. But such allegation must be supported by clear material. Mere inconvenience or dislike of place is not enough. Law expects that the employee should first obey the order and then take legal steps if required. In the present case, there is no convincing material to show that the transfer was without authority or in violation of rules. The order dated 21 June 1990 was issued, and immediately 10 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc thereafter, on 22 June 1990, the respondent's name was removed from the Mumbai muster. This shows that the employer acted on the transfer in a regular manner.
17. More importantly, the record indicates that the respondent was repeatedly asked to report at Bhopal. There were repeated calls to join duty. Even then, the respondent did not report. This continued for years. Such long absence cannot be treated lightly. Service discipline depends on obedience to lawful orders. If an employee remains away for such a long period without proper justification, it affects the foundation of employer-employee relationship.
18. The explanation given by the respondent also needs careful consideration. He says that there was no workshop at Bhopal, no proper work, and no team for him to function. At first glance, these statements may appear to create some sympathy. It may even appear that the transfer was not convenient. But the legal position does not change on that basis. It is not for the employee to decide whether the employer's decision is useful or not. The employer is the one who organizes work and decides postings. Unless the decision is illegal or taken in bad faith, the employee is bound to follow it.
19. The respondent had already challenged the transfer earlier by filing Complaint (ULP) No. 805 of 1996. That complaint was dismissed. This shows that the respondent did try to question the transfer, but did not succeed. After that, he could not continue to resist the transfer indirectly by not joining and then raising the 11 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc same issue in disciplinary proceedings.
20. Therefore, when the Tribunal proceeded to examine the validity of the transfer again, it went beyond what was necessary. The disciplinary proceedings were about refusal to join and absence from duty. They were not meant to re-examine whether the transfer itself was good or bad. By entering into that area, the Tribunal enlarged the dispute unnecessarily. That approach, in my view, was not correct. Coming now to the departmental enquiry, this becomes a important part of the matter. It is always true that fairness in enquiry is essential. If the enquiry is conducted in a manner which is unjust or biased, then the entire action can fail. Mr. Vaidya is correct in saying that fairness cannot be ignored. But fairness has to be judged on actual facts and material. Here, the Tribunal itself has recorded certain findings. It has said that the charges were not vague. This means the respondent knew clearly what allegations were made against him. It has also said that adequate opportunity was given to him to defend himself. This means he was allowed to participate and explain his case. It has further held that he was not entitled to subsistence allowance. These findings together show that the enquiry had some basic elements of fairness. In such situation, it becomes difficult to accept the final conclusion of the Tribunal that the enquiry was vitiated. If the charges are clear and opportunity is given, then on what basis can the enquiry be said to be bad. The reasoning does not properly connect. It appears that the Tribunal has reached one conclusion, but the earlier findings do not support it. This creates inconsistency. A judicial finding must be consistent within itself. It 12 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc cannot say one thing at one place and another at a different place without proper explanation.
21. The issue of translator assistance also requires attention. The respondent has claimed that he was not properly assisted and therefore he could not defend himself. However, the petitioner has pointed out that the proceedings were translated into Marathi and that a translator was made available. The respondent has also signed the enquiry proceedings. These facts carry weight. Signing of proceedings generally indicates participation and understanding, unless something is shown otherwise. Further, the respondent has not been able to show what actual prejudice was caused to him. It is not enough to say that translator was not there. It must also be shown that because of that, he could not understand the charges or could not defend himself properly. No such concrete difficulty is pointed out. On the contrary, the record shows that he filed reply to the charge-sheet, attended enquiry, and took part in proceedings. This indicates that he was aware of what was happening.
22. In matters of disciplinary enquiry, the Court does not insist on perfect procedure like in a criminal trial. What is required is reasonable opportunity and basic fairness. If the employee understands the case and is able to respond, then minor irregularities do not vitiate the entire process. In the present case, the material suggests that the respondent was not kept in the dark. He was aware and he participated. Therefore, when the Tribunal observed that there was nothing on record to show assistance of a translator, such observation does not appear to be fully correct.
13 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 :::wp400-2010-J.doc The documents and circumstances indicate otherwise. The Tribunal seems to have overlooked certain material aspects while arriving at that conclusion.
23. The objection regarding non supply of documents also requires closer look. The Tribunal has taken a view that the respondent got the documents only during the enquiry. At first reading, this may appear serious. Because if documents are not given, then defence becomes difficult. But when the record is carefully seen, this finding does not stand on firm ground. The reply given by the respondent to the charge sheet itself gives indication. In that reply, he refers to certain documents and contents forming part of the charges. This is important. A person cannot normally refer to documents in detail unless he has seen them earlier or at least knows their contents. It is true that sometimes a person may generally deny charges without full knowledge. But here the reply shows awareness of the material. When this reply is read along with other parts of the record, it gives a clear impression that the respondent was not kept in the dark. He knew what case he had to meet. Therefore, the conclusion of the Tribunal that documents were not supplied appears to be based on incomplete appreciation of record. A finding must match the surrounding facts. Here it does not properly match.
24. The next aspect which needs careful attention is the manner in which the Tribunal has dealt with the issue of transfer itself. It must be first clearly understood what exactly was the reference before the Tribunal. The Industrial Court was required to answer, 14 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc whether the action of the management in terminating the employee, and thereafter modifying the punishment to compulsory retirement in appeal, was legal and justified, and further, what relief, if any, the employee was entitled to. This was the real and limited question before it. The Tribunal was not sitting as an authority to generally examine the correctness of every decision taken by the employer. In this background, when the record is seen, it becomes apparent that the Tribunal has travelled beyond this limited scope. The disciplinary enquiry was not initiated to test whether the transfer order dated 21 June 1990 was proper or not. The enquiry was specifically concerned with the conduct of the respondent. The charge was that he did not obey the transfer order and that he remained absent for a long period without authority. These are matters of conduct and discipline. They stand on a different footing from the validity of the transfer itself.
25. It is important to keep this distinction clear. Even if an employee feels that a transfer is not justified, the normal rule is that he must comply with it first and then challenge it before a competent forum. Unless the transfer order is stayed, set aside, or shown to be completely without authority, it continues to remain in force. In the present case, there is nothing on record to show that the transfer order was ever stayed or quashed by any competent authority. Therefore, it was binding on the respondent. He was expected to report at the transferred place. However, the Tribunal went into issues such as whether there was a workshop at Bhopal, whether there was sufficient work available, and whether the transfer was convenient or justified in practical terms. The 15 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc employer is the best judge of how to distribute its workforce and where services are required. These considerations do not form part of the enquiry into whether the employee committed misconduct by not joining duty. By examining these aspects, the Tribunal shifted its focus from the conduct of the employee to the decision of the employer. The Tribunal was not called upon to sit in appeal over the transfer order. Its task was limited to see whether the disciplinary action taken for non-compliance was legal. When it starts deciding whether the transfer itself was proper, it steps outside its jurisdiction. Therefore, in the present case, the Tribunal by going into the merits of the transfer order has enlarged the dispute unnecessarily and has diverted from the real issue. The enquiry ought to have remained confined to the question whether the respondent disobeyed a lawful order and whether the punishment imposed for such conduct was justified. Once this line is crossed, the reasoning becomes open to serious doubt.
26. Coming to the issue of delay, this also needs a careful and balanced approach. There is no dispute that there was delay. The transfer was of the year 1990. The charge sheet came much later. Even before the Tribunal, evidence was led after considerable time. Delay is not something which can be ignored completely. It can affect fairness in certain situations. In some cases, delay itself may cause prejudice. But at the same time, delay alone does not erase misconduct. This distinction is important. In the present case, the misconduct is not of a one-day event. It is of continuous nature. The respondent did not join at Bhopal. He remained absent for years together. This is not something which happened once and 16 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc ended. It continued over a long period. Therefore, the employer's action cannot be seen as suddenly taken after sleeping over the matter. Further, the respondent was always aware of what was expected from him. He was called upon to join. He chose not to do so. In such a case, it cannot be said that delay has caused him some unexpected prejudice. He knew the consequences of his conduct. Therefore, though delay is not desirable, it does not wipe out the seriousness of the misconduct in the present facts.
27. The plea of victimisation does not appear to have substance on the basis of the material placed on record. It must be remembered that allegation of victimisation carries serious consequences. It can render the action of the employer illegal. Therefore, such allegation must be supported by reliable material. It cannot rest only on general statements. In the present case, the respondent has stated that the transfer was not required and that it was done to trouble him. But apart from making such statement, no concrete material is shown. There is no indication of any personal bias, or any particular circumstance suggesting that the employer acted only to harass him. Mere inconvenience or disagreement with the transfer cannot automatically become victimisation. On the other hand, the surrounding circumstances indicate a different picture. The service condition itself permitted transfer. The employer exercised that power and issued the transfer order. The respondent was not left without remedy. He had the opportunity to challenge the transfer before a competent forum, and in fact he did so earlier. After that stage, the respondent still had options available. He could have joined at 17 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc Bhopal under protest and continued to pursue his remedy, or he could have approached another appropriate forum if permissible in law. Instead, he chose not to join at all and remained absent. This conduct weakens the plea of victimisation. If such conduct is accepted as justified, then any employee can simply refuse to work by labelling a transfer as unfair.
28. The submission of the petitioner regarding opportunity of defence assistance also requires due weight. It is stated that the respondent was given liberty to take assistance of a retired or serving council servant during the enquiry. This is shows that the enquiry was conducted with an intention to give fair opportunity. It was not conducted in a one sided manner. The respondent, however, did not avail of this opportunity. That was his own choice. Once such opportunity was made available and not utilised, the respondent cannot later contend that he was denied proper assistance. Law does not permit a person to refuse available help and then complain of lack of support.
29. The respondent had addressed several letters in English to the petitioner. This shows that he had working knowledge of the language used in the proceedings. Therefore, the contention that he could not understand the enquiry proceedings or the material placed before him becomes less convincing. It is not necessary that a person should have perfect command over language. What is required is basic understanding. The record indicates that such understanding was present. A judicial authority must consider the real situation as it exists, and not proceed only on technical objections unless those objections have caused actual prejudice to 18 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc the person concerned.
30. The question of punishment must also be examined in its proper perspective. Initially, the disciplinary authority had imposed the penalty of termination. In appeal, this penalty was reduced to compulsory retirement. It shows that the matter was reconsidered and a lesser penalty was thought appropriate. It reflects that the employer did not act in an excessively harsh manner at the final stage. Such modification indicates that some degree of leniency was already shown.
31. When the nature of misconduct is considered, the position becomes clearer. The respondent remained absent for nearly seven years and did not comply with a transfer order. Such conduct affects discipline and functioning of the organisation. In these circumstances, the punishment of compulsory retirement cannot be said to be shockingly disproportionate. The Tribunal, after holding the enquiry to be defective, permitted both sides to lead evidence. At that stage, the Tribunal was required to examine whether the charges stood proved on the basis of such evidence.
32. The respondent has also raised one more submission which needs to be considered with some care. It is stated that his name was struck off from the muster roll with effect from 22 June 1990, and therefore, according to him, this itself amounts to termination of service. For this proposition, reliance is placed on the decision in Delhi Cloth and General Mills Limited. In common understanding, if a person's name is removed from attendance or muster, it may suggest that he is no longer in service. However, the real nature of 19 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc the action has to be seen in the context in which it was taken. In the present case, the name was struck off from the Mumbai muster immediately after the transfer order dated 21 June 1990. This action appears to be administrative in nature, reflecting that the respondent was no longer attached to the Mumbai office and was required to report at Bhopal. Therefore, removal from the muster in this case cannot be straightaway equated with termination of service. It was not an order saying that his services were brought to an end. It was only indicating that he was no longer part of that particular establishment. His lien in service was not shown to be extinguished at that stage. On the contrary, he was repeatedly called upon to join at the transferred place. This itself shows that the employer treated him as continuing in service, subject to compliance with the transfer order.
33. The petitioner has rightly pointed out that the reference before the Tribunal was limited. The Tribunal was required to examine whether the action of the management in terminating the respondent, and thereafter modifying the punishment to compulsory retirement in appeal, was legal and justified, and what relief the respondent was entitled to. This was the defined scope of adjudication. The question, whether the removal of name from muster roll in the year 1990 itself amounted to termination was not the subject-matter of the reference in that form. If such a plea is allowed to be raised and decided independently, it would change the entire nature of the dispute. The Tribunal would then be required to go into a completely different issue, which was not referred for adjudication. Law does not permit such expansion of 20 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc scope beyond the reference.
34. Moreover, if the respondent's argument is accepted, it would lead to an inconsistent situation. On one hand, he claims that his services stood terminated in 1990 itself. On the other hand, he participated in proceedings relating to disciplinary action taken later, and challenged the punishment of compulsory retirement. These two positions do not sit together easily. If he was already terminated in 1990, then the later proceedings would not arise. But his own conduct shows that he treated himself as continuing in service for the purpose of challenging subsequent action. Therefore, when the entire material is seen together, the submission of the respondent on this point does not appear to be acceptable. The striking off from muster roll in the present facts cannot be treated as termination of service. It was only a consequence of transfer. Further, the Tribunal was not required to decide this issue in the manner sought by the respondent, as it travelled beyond the scope of reference. For these reasons, this contention raised by the respondent cannot be accepted.
35. In these circumstances, the direction of reinstatement with back wages goes beyond what can be considered reasonable. It overlooks important aspects of the case and grants relief which is not justified on the material available. Therefore, such direction cannot be sustained.
36. In view of the foregoing discussion and reasons recorded hereinabove, the following order is passed:
(i) The writ petition succeeds; 21 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 ::: wp400-2010-J.doc (ii) The impugned Awards dated 22 May 2003 and 7
August 2009 passed by the Central Government Industrial Tribunal No. 2, Mumbai are quashed and set aside;
(iii) The order dated 3 May 2000 passed by the appellate authority, whereby the punishment of termination was modified to compulsory retirement, is upheld;
(iv) The direction issued by the Tribunal for reinstatement of the respondent with 50% back wages is set aside;
(v) Rule is made absolute in the aforesaid terms;
(vi) There shall be no order as to costs.
(AMIT BORKAR, J.) 22 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:32 :::