Bombay High Court
Arun vs Maharashtra State Road Transport ... on 28 January, 1991
Equivalent citations: (1992)ILLJ812BOM
JUDGMENT
1. The petitioner was appointed as Clerk with effect from July 6, 1973 by the Deputy Works Manager, Central Workshop, M.S.R.T.C., Nagpur vide order dated July 6, 1973. While he was working as a Clerk, he was served with a charge-sheet dated August 22, 1980. The charge was that he committed a theft of two pieces of Rexin cloth measuring 10" x 1" and 33" x 21". Thereafter, the departmental enquiry was held by one Deshpande, an Accounts Officer, against whom the petitioner had a grievance. The petitioner felt that he was being harassed by Mr. Deshpande and he therefore, sought his transfer from the Central Workshop, Nagpur to any other office and this happened before he was served with the charge-sheet. However, he was not transferred and he had to continue in the Central Workshop at Nagpur, where Mr. Deshpande was working as an Accounts Officer. Mr. Deshpande issued the charge-sheet and also acted as an Enquiry Officer. It is also alleged that Mr. Deshpande extensively cross-examined the petitioner and his other witnesses and ultimately prepared a report proposing the punishment of dismissal and the petitioner was, accordingly, dismissed on June 2, 1981 by Mr. Deshpande.
2. The petitioner filed an application before the Labour Court under Section 7 read with Section 30 of the Unfair Labour Practices Act. In the application as well, he alleged that Mr. Deshpande was biased against him and he was victimised. However, Labour Court, vide order dated June 30, 1988, negatived all the contentions of the petitioner and maintained the order of dismissal. It was also urged before the Labour Court that at any rate the punishment that was inflicted on the petitioner was out of all proportion and, therefore, it was necessary to reduce the punishment. This contention also did not find favour with the Labour Court. The matter was further challenged by the petitioner by way of revision before the Industrial Court. The Industrial Court also dismissed the revision. I was again submitted before the Industrial Court that the punishment of dismissal was out of all proportion, but this did not find favour even with the Industrial Court. While discussing the question of quantum of punishment, the Industrial Court observed as under :
"As regards the punishment suffice it to say that the charge of theft indeed proved in domestic enquiry and found to be proper by the learned lower court cannot be said to be of a minor nature or of technical character. In the industrial establishments it is the managerial function of the employer to award the punishment. The Tribunals can interfere in this managerial function only if it is found that the punishment awarded is for misconduct of a technical nature or of a minor character."
From the above reasoning given by the Industrial Court, it appears that the Industrial Court was swayed with the fact that the charge of theft was not of a minor or technical nature and, therefore, it did not interfere with the quantum of punishment. While considering the question of punishment, the Industrial Court has not addressed itself to the gravity of the offence, inasmuch as the property which was subject-matter of theft was taken into consideration at all. As I have shown above, the property in the present case consists only of two small pieces of Rexin cloth measuring 10" x 1" and 33" x 21". In my view, whenever the question of sentence is to be considered, the gravity of the offence has to be taken into consideration. It is true that the offence which appears to have been committed is one of theft, but certainly the quantum of property involved and the circumstances in which the offence is committed are bound to have its own impact on the question of gravity of the offence. Mr. Manohar has vehemently contended that in the peculiar facts and circumstances of this case, the property involved cannot be ignored; and that being very small and insignificant the punishment could never be one of dismissal from service, particularly when the petitioner had put in about eight years of service in the Department. In order to substantiate his argument, Mr. Manohar has relied on the decision Rama Kant Misra v. State of U. P. and Ors. reported in (1982-II-LLJ-472). In this case, the delinquent had threatened his Superior and had warned him of dire consequences. This resulted in the termination of his services after holding the regular departmental enquiry. The charge in this case is reproduced below :
"Shri Rama Kant was charged for misconduct under Clause 20 (9), (18) and (28) of the Standing Orders for disorderly behaviour or conduct likely to cause a breach of peace threatening employee within the premises and conduct prejudicial to good order and discipline."
While dealing with this case, the Supreme Court observed as follows (pp. 474-475) :
"5. The charge of which appellant is found guilty is already extracted hereinbefore. It amounts to a riotous or disorderly behaviour during working hours at the establishment. Atleast this could not be said to be an act subversive of discipline. The misconduct attributed to the appellant is that he used some language unbecoming of a disciplined work-man and may have thereby exposed a threatening posture which is alleged to be subversive of discipline. Shorn of all embellishments, enraged by deduction from his wages, appellant, a Joint Secretary of Union of Workmen, used some language which can be said to be indiscreet. In order not to minimise the gravity of the charge we have extracted the charge by its free translation and it must be confessed that both the learned counsel who appeared on either side were fully conversant with the Hindi language and, therefore, clearly understood the import of the language used by the appellant. In the ultimate analysis the misconduct is use of language indiscreet or may be said to be indecent or may be disclosing a threatening posture. We will proceed on the assumption that use of such language is punishable under the relevant Standing Orders. So what.
6. The punishment must be for misconduct. To some extent misconduct is a civil crime which is visited with civil and pecuniary consequences. In this case it has resulted in dismissal from service. In order to avoid the charge of vindictiveness, justice, equality and fair-play demand that punishment must always be commensurate with the gravity of the offence charged. In the development of industrial relation norms we have moved far from the days when quantum of punishment was considered a managerial function with the courts having no power to substitute their own decision in place of that management. More often the courts found that while the misconduct is proved, the punishment was disproportionately heavy. As the situation then stood, courts remained powerless and had to be passive suffers incapable to curing the injustice. Parliament stepped in and enacted Section 11-A of the Industrial Disputes Act."
Ultimately, the Supreme Court in that case held that the punishment of dismissal was out of all proportion and further observed that the Labour Court completely misdirected itself and landed itself in an unsustainable order. The Supreme Court modified the punishment by directing the withholding of two increments with future effect in place of the dismissal from service. The above decision, in my view, applies to the facts of the present case with full force. In the present case also, it appears that the authorities below have refused to impose lesser sentence merely because the offence amounted to one of theft which falls in the category of major misconduct as per the Standing Orders. The Industrial Court also found that in the industrial relations, the question of sentence was a managerial function and the Courts could not interfere in it. All these aspects were present in the aforesaid case cited supra, and yet the Supreme Court modified the sentence.
3. Another case which is also heavily relied by Mr. Manohar is Ranjit Thakur v. Union of India & Ors. reported in (1988-I-LLJ-256). This was a case of military-man who was dismissed from service on the ground that he refused to take his meal even though ordered by his Superiors. The charge which was framed against him was under Section 41(2) of the Army Act which is reproduced below :
"Disobeying a lawful command given by his superior officer in that he at 15.30 hrs on May 29, 1985 when ordered by JC 106251 P Sub Ram Singh, the Orderly Officer of the same Regiment, to eat his food did not do so."
The appellant in the above case pleaded guilty and the charge framed against him was held proved. Consequently, he was dismissed from service with the added disqualification of being declared unfit for any future civil employment. While dealing with this case, the Supreme Court observed that charge was held proved. However, the Supreme Court, on the quantum of sentence found that punishment of dismissal was out of all proportion. In that context, it observed as under (pp. 262) :
"9. Re : contention (d) : Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."
Ultimately, the Supreme Court held that the punishment of dismissal of the delinquent from the military service was strikingly disproporionate and the proceedings of the Summary Court-Martial and the sentence were quashed and the delinquent was directed to be reinstated with all monetary and service benefits. Mr. Manohar contended that even in the above case where a military-man was charged for misconduct, the Supreme Court examined the question of sentence and quashed the same. I find much substance in the contention of Mr. Manohar, inasmuch as the highest standard of discipline is expected in a military service and even there when the Supreme Court found that the punishment imposed was strikingly disproportionate to the offence, the sentence was reduced.
4. In the present case, the property involved is extremely negligible and insignificant. Even under Section 95 of the Indian Penal Code, offences of trivial nature are not taken note of. In a writ jurisdiction, I do not want to appreciate the evidence afresh in order to find out as to whether the act of the petitioner in removing those two small pieces of Rexin Cloth of the size of 10" x 1" and 33" x 21" constituted an offence of theft. Mr. Manohar wanted me to examine the departmental enquiry proceedings on merit particularly in regard to his contention that the Enquiry Officer was biased. But, all these facts having been appreciated by the Courts below, I do not want to enter into that discussion again in a writ petition.
5. Mr. Manohar has also invited my attention to the Regulation issued on August 19, 1987 to substantiate his contention that the impugned order cannot be sustained because the dismissing authority, though was competent authority, no prior sanction was sought from the appointing authority. For this, he has relied on the note which is reproduced below :
"(1) If any Officer other than the one mentioned in Clause (2) of this Schedule is authorised by the Appointing Authority to carry out the functions of the post of the competent Authority prescribed in Column (2) of this Schedule, such officer shall be the Competent Authority for the purpose of Column (2) of this Schedule, such officer shall be the Competent authority for the imposing the punishment indicated against (f) to (i) under Clause 7 of the Discipline and Appeal Procedure for the Maharashtra State Road Transport Corporation employees shall be subject to confirmation by Appointing Authority in respect of such cases where the Appointing Authority is not prescribed either as Competent Authority or the Appellate Authority under this Schedule."
According to him, in view of this infirmity in the conduct of the department enquiry, the entire proceeding is vitiated. Though there appears to be some substance in this contention, I do not want to decide this issue which is being raised for the first time in a writ petition.
6. Thus, after giving my anxious consideration to all the aspects involved in the present case, I think, it is a fit case where the order of dismissal cannot be sustained. Reinstating him without back wages would meet the ends of justice in the peculiar facts and circumstances of this case. The petition is partly allowed and the impugned order of dismissal is set aside. I direct that the petitioner should be reinstated without backwages.