JUDGMENT By means of this writ petition the petitioner has sought to quash the order dated 12-04-1998 passed by the Labour Commissioner and Appellate Authority whereby suspension and removal from services of the respondent No.1, has been set aside. 2. Brief facts of the case as per the petition are that the petitioner, H.M.T. Limited is employer and Mr. L.K. Verma, respondent No.1 was its employee as Safety Offier posted at Ranibagh, Nainital. Respondent No. 1 allegedly committed certain misconduct for which he was placed under suspension during the final enquiry. The respondent No.1 filed appeal before the Labour Commissioner under Rule 14 of the U.P. Factories (safety Officers) Rules, 1984. Simultaneously, the respondent No.1 filed a writ petition No. 10684 of 1996 before the Allahabad High Court. The said writ petition was disposed of, allegedly without notice to the petitioner, with the direction that appeal against the suspension order be decided by the Labour Commissioner within the period fixed by the said Court. Meanwhile, on completion of enquiry a show cause notice dated 08-01-1998 (copy Annexure1 to the writ petition) was issued to the respondent No.1 as to why punishment of dismissal be not awarded against him. On this the respondent No. 1 allegedly acted on hot haste and persuaded the Labour Commissioner, respondent No. 2 to issue notice to the petitioner to appear before the Labour Commissioner on 02-04. 1998. The petitioner requested the Labour Commissioner to adjourn the hearing for a dam after 15-04-1998 as petitioner was busy in work relating to closing of financial year. However, the Labour Commissioner chose to fix 09-04-1998 as a date for hearing of appeal which was a holiday. No grounds of appeal filed by Mr. L.K. Verma, respondent No. 1 were allegedly given to the petitioner and even after request for adjournment, respondent No. 2 proceeded with the hearing of the appeal. In the meantime, reply dated 21-02-1998 given by respondent No.1 in response to the show cause notice dated 08-01-1998 was considered and respondent No. 1 was dismissed from the services. The respondent No. 2 passed the impugned order deciding the appeal whereby, not only the suspension order but also the order of dismissal from service was set aside. Challenging the said impugned order is illegal and arbitrary this writ petition has been filed. 3. The respondent No. 2 passed the impugned order deciding the appeal whereby, not only the suspension order but also the order of dismissal from service was set aside. Challenging the said impugned order is illegal and arbitrary this writ petition has been filed. 3. The respondent No. 1 filed the counter affidavit and admitted that the he was Safety Officer with the petitioner company. It is stated in the counter affidavit that the services of the respondent No.1 were governed by the U.P. Factories (Safety Officers) Rules, 1984. For violation of the Rules and a crime case No. 478 of 1991 was registered against the top authority of the petitioner company for prosecution against which Mr. N. Sethumadhavan, the occupier of the Factory moved an application before High Court of Allhabad under section 482 of the Code of Criminal Procedure which was dismissed on 2002-1998. After this Management of H.M.T. United (petitioner) was at daggers drawn with the respondent No. 1 and the Labour Commissioner. The charge- sheet in question was result of the same dispute. It is further stated in the counter affidavit that no show cause notice was given prior to the passing of suspension order. The enquiry was hurriedly conducted without affording sufficient opportunity to the respondent No. 1. In writ petition No. 10684 of 1996, Allahabad High Court directed the Labour Commissioner to dispose of the statutory appeal within a period of eight weeks from the date of production of certified copy of the order dated 21-02-1998 passed by the said Court. The Labour Commissioner (respondent No.2) accordingly acting on the directions of the Court decided the appeal by a speaking order on 12-04-1998. In the counter affidavit it is further alleged that under Rule 8 of the U.P. Factories (Safety Officers) Rules. 1984 suspension from services itself is a punishment and the petitioner company could not have awarded the same without affording any opportunity to respondent No. 1. Respondent No. 1 has further stated in his counter affidavit that he did not get opportunity to cross examine the witnesses as such according to respondent No. 1 the impugned order was justified. 4. I heard learned counsel for the parties at length. 5. The short question for consideration before this Court is whether the impugned order dated 12-04-1998 is illegal and arbitrary and whether the respondent No. 1 was lawfully dismissed from service? 6. 4. I heard learned counsel for the parties at length. 5. The short question for consideration before this Court is whether the impugned order dated 12-04-1998 is illegal and arbitrary and whether the respondent No. 1 was lawfully dismissed from service? 6. Admittedly, the petitioner company is employer and respondent No.1 was is employee as Safety Officer., It is also admitted that he was placed under suspension on certain charges of alleged misconduct against which he preferred an appeal before the Labour Commissioner (respondent No.2). It is also not disputed that the respondent No. 1 challenged the order of suspension in writ petition No. 10684 of 1996 before the Allahabad High Court which was disposed of with the direction to the Labour Commissioner to dispose of the appeal pending before him wi1lllrin a period of eight weeks from the date of production of certified copy of said order passed on 21-02-1998. The impugned order in consequence of said direction was passed on 12-04-1998, a copy of which is Annexure-8 to the writ petition. To examine the issue before this Court, It is pertinent to mention here that what were the charges against the respondent No. 1 and, thereafter in what manner the enquiry by the petitioner company and appeal by the respondent No. 2 were conducted. The charges against the respondent No. 1 were as under :- "1. You have filed a writ petition No. 10684 of 1996 in the Hon'ble High Court at Allahabad against Labour Secretary, U.P., other Government Officials and HMT in which you have filed an Affidavit on oath on 28-02-1996 at 10.30 A.M. in front of Oath Commissioner, Allahabad and on this date not only card is punched showing you to be present in the factory but you have also marked yourself present in the attendance register the maintained by you. 2. On 18-05-1996 at about 4.00 P.M. when you were questioned by MHR in presence of PMR regarding the above, you got agitated during the prima-facie enquiry and abused MHR in filthy language and said that all these things were being done at the behest of Mr. Kaul, GTM. You also threatened MHR with dire consequences. 3. 2. On 18-05-1996 at about 4.00 P.M. when you were questioned by MHR in presence of PMR regarding the above, you got agitated during the prima-facie enquiry and abused MHR in filthy language and said that all these things were being done at the behest of Mr. Kaul, GTM. You also threatened MHR with dire consequences. 3. On perusal of your records, it also appears that you pursued a full-time course in Post Diploma in Industrial Safety in 1985-86 from Regional Labour Institute, Kanpur and showed the same period in your experience with Indian Telephone Industries Limited, Raebareli, at the time of filling in your application form for employment. " Out of the aforesaid three charges, charges No. 1 and 2 were not found proved while the charge No. 2 which pertains to disorderly indecent behaviour, abusing, threatening and passing derogatory remarks against senior officers of the company found proved. The copy of the enquiry report is Annexure~2 to the writ petition. 7. The impugned order dated 12-04-1998 which is Annexure No.8 to the writ petition shows that the appeals against the suspension order of the year 1996 and dismissal order of the year 1998 were taken up together and disposed of by the single impugned order. While allowing the appeals, the respondent No.2, Labour Commissioner has stated that during the pending appeal against the suspension order, the act of passing order of dismissal is against the Rules. The view taken by the Labour Commissioner (respondent No.2) is erroneous in law as it is during the pendency of enquiry when a person is placed under suspension and if no stay order has been passed by any Authority or Court, the petitioner company were duty bound to proceed with the enquiry. Since one of the charge was found proved the petitioner company was competent to award the appropriate punishment. Perusal of the impugned order further shows that respondent No. 2 has held that relating to the charge which was found to have been proved, no evidence was adduced. This observation of the respondent No. 2 while disposing of the appeal of respondent No.1 suffers from the error apparent on the face Of the record. The enquiry report (copy Annexure-2) shows that the statement of Mr. Rajan Sinha and another witness was recorded as to the incident of 18-05-1996 and was cross examined by the respondent No.1 at length. This observation of the respondent No. 2 while disposing of the appeal of respondent No.1 suffers from the error apparent on the face Of the record. The enquiry report (copy Annexure-2) shows that the statement of Mr. Rajan Sinha and another witness was recorded as to the incident of 18-05-1996 and was cross examined by the respondent No.1 at length. Regarding the discussion of evidence relating to Mr. Rajan Sinha, Manager Human Resources (MHR) observations of enquiry officer is reproduced below except the un-parliamentary words from the enquiry report : "As regards the charge No. 2 of disorderly and indecent behaviour, abusing, threatening etc., management witness Sri A.K. Tyagi who was also presenting officer said that Sri Verma did not cooperate in the prima-facie enquiry on 18-05-1996 and after some time refused to participate any further in the enquiry. When Sri Rajan Sinha advised him that he is making a mistake by not participating in the enquiry Sri Verma got agitated and told Sri Sinha" ***** *":** (un parliamentary words)” do not teach me what is wrong and what is right and added that he knew that all these things were being done at the behest of 'SALA GANJA' (referring to GTM, Sri B.L. Kaul). Sri Verma also. threatened Sri Rajan Sinha. Sri Rajan Sinha the complainant, in his statement narrated the whole incident of 18-05-96 and confirmed that Sri Verma abused him and used derogatory language against senior officials of the company. Sri Sinha further submitted that Sri Verma threatened him with dire consequences and Sri Sinha made a report of the prima-facie enquiry in which he mentioned the incident of misbehaviour of Sri Verma on 18-05-96; Both the management witnesses corroborated each other's statement Both these management witnesses were cross examined thoroughly by Sri Verma but no contradictions were found in the statement of two management witnesses regarding the second charge i.e. disorderly and indecent behaviour, abusing and threatening other employees of the company. The fact of non participation/cooperation on the part of Sri Verma during the prima-facie enquiry is on record in the proceedings. The fact of non participation/cooperation on the part of Sri Verma during the prima-facie enquiry is on record in the proceedings. Further, whereas Sri Verma has said that he had high regards for the officer conducting the prima-facie enquiry and had nothing against him, and the atmosphere during the prima-facie enquiry was very cordial, subsequently Sri Verma has imputed all evil motives to the officer conducting prima-facie enquiry alleging him to be a co-conspirator in a bid to defame and damage Sri Verma's career. Sri Verma also submitted subsequently that Sri Sinha and Sri Tyagi were trying to provoke him and if this was so, how was the atmosphere so cordial? Sri Verma himself has accepted during the course of enquiry that he was in tense mood while coming to prima-facie enquiry. Therefore, there is enough reason to believe the deposition of company's witnesses that there is a substance in the' charge number 2 leveled against Sri Verma." 8. The learned Appellate Authority (respondent No.2) has rejected the evidence by merely saying that in preliminary enquiry utterances by the respondent No. 1 is said to have been made due to the tension in the mind of delinquent official. The reason for rejection of the evidence in this manner is nothing but a pretext searched for allowing the appeal instead of appreciating it fairly. As such the impugned order is against all norms of law pertaining to the principles of enquiry. 9. Learned counsel for the respondent No. 1 referred to Rule 8 of the U. P. Factories Rules,"1950 and argued that suspension and dismissal are two separate penalties and could not have been awarded together. Here it is necessary to mention that suspension by itself is no punishment till the conclusion of the enquiry, as a person can be placed under suspension during the period of enquiry (Preliminary or final). The Rule itself permits to impose more than one penalties as it opens with the sentence- "an occupier of the Factory may Impose upon any Safety Officer, anyone or more of the following penalties". As such, I see no force in the contention of the learned counsel for the respondent No. 1 on this point. 10. The, second submission made on behalf of respondent No.1, is that' the entire proceedings of enquiry were malafide as the respondent No. 1 being Safety Officer, demanded several employment benefits and. As such, I see no force in the contention of the learned counsel for the respondent No. 1 on this point. 10. The, second submission made on behalf of respondent No.1, is that' the entire proceedings of enquiry were malafide as the respondent No. 1 being Safety Officer, demanded several employment benefits and. filed writ petition before the Allahabad High Court which made the management people of the petitioner company annoyed against the respondent No.1. Had it been a case of a single man getting annoyed, the Court could have believed to some extent the alleged malafide but the same cannot be believed in respect of the officers who have adduced the enquiry and those who have conducted the preliminary and final enquiries. The fair and full opportunity appears to have been given to the respondent No. 1 at the time of final enquiry. 11. The third contention of the learned counsel for the respondent No. 1 is that the punishment awarded is not proportionate to the charge found proved. I see little force in the contention for the reason that had it been an act of using abusive language and terrorizing one's staff or colleagues the punishment of dismissal could have been said to be not proportionate to the charge but here in the present case filthy, abusive, unparliamentary language has been used against the very senior officers of the company and they have been threatened by the respondent No. 1 as such is not a case of mercy or disproportionate punishment. 12. Lastly my attention was drawn to the principle of law laid down in Messrs Lipton India Ltd. V. State of U.P. and others reported in 1997 (75) FLR pg 454; Union of India V. H. C. Goel reported in A.I.R. 1964 SUPREME COURT pg 364 and Jagdish Prasad V. Sachiv Zila Ganna Committee, Muzaffarnagar and another reported in A.I.R.1986 SUPREME COURT pg 1108. As far as the case of Messrs Lipton India Ltd. is concerned it is enough to mention here that the remedy sought under Article 226 of the Constitution of India in this case is not for appreciation of evidence adduced by the parties in the enquiry as such the said case law is not applicable. As far as the case of Messrs Lipton India Ltd. is concerned it is enough to mention here that the remedy sought under Article 226 of the Constitution of India in this case is not for appreciation of evidence adduced by the parties in the enquiry as such the said case law is not applicable. So far as the principle of law laid down in Union of India V. H.C. Goel (Supra) is concerned, no doubt the Labour Commissioner being Appellate Authority had every right to give different conclusion to that of the enquiry officer but one cannot do so ignoring all principles of law relating to enquiry and appreciation of the evidence. Jagdish Prasad V. Sachiv Zila Ganna Committee, Muzaffarnagar and another (Supra) case also does not help the respondent No. 1 as it relates to the simpliciter termination with the terms and conditions expressing stigma against the delinquent officer. Here in the present case full-fledged preliminary and final enquiries have been held and full opportunities have been given to the delinquent officer. 13. In view of the above discussion, the impugned order dated 12-04-1998 passed by the Labour Commissioner/Appellate Authority (respondent No.2) is liable to be quashed for the reasons mentioned in this judgment as above. The writ petition is accordingly allowed and the order dated 12-04-1998 of the respondent No.2 is quashed. No order as to costs.