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2007 DIGILAW 1796 (DEL)

Syndicate Bank v. Shiv Prasad

2007-09-19

G.S.SISTANI

body2007
JUDGMENT G.S. Sistani, J. 1. The petitioner has filed the present petition a against the award dated 22.9.2004 whereby the learned Tribunal has interfered in the quantum of punishment which was imposed on the respondent. Notice to show cause was issued in this petition. Despite notice, the respondent has not entered appearance in the matter. 2. The necessary facts of the case are that the respondent was working be as a cleric and was performing duties at National Physical Laboratory (hereinafter NPL) extension counter attached to Pusa Road Branch of the petitioner-Bank. The respondent was asked to perform cashiers duty for a brief period on rotation of duties at the branch w.e.f. 12.11.1988. It is submitted that the respondent after having been entrusted with cashiers duty at the NPL extension counter caused inconvenience to the functioning of the branch, administration as well as the customers at the branch. The petitioner was thus asked to cease the performance of his duties as cashier w.e.f. 22.12.1998 vide necessary orders as per the provisions of the bipartite settlement. 3. The respondent raised the issue of withdrawal of cashiers duty and the dispute was referred by the Government to the Tribunal in I.D. No. 89/1989. This reference was decided by passing an award dated 16.9.1991 leaving no dispute in the case. 4. The respondent continued to indulge in wilful insubordination and deliberate disobedience of lawful and reasonable orders of the superiors and also in deliberate slowing down in performance of work causing a lot of inconvenience to the branch administration and customers at the branch. Owing to his alleged misconduct, the respondent was orally instructed besides written orders dated 11.11.1988 and letters dated 21.11.1988 and 25.11.1988 to attend the postal outward duties after completion of his duties as cashier. However, the respondent refused to perform the said postal duties without assigning any reasons. Further, it is submitted that the respondent also indulged in go-slow practice in delaying the completion of the cash work. 5. On account of the gross-misconduct of the respondent an Inquiry Officer was appointed on 1.5.1989. The Inquiry Officer issued notice to the respondent for conducting an inquiry. The Inquiry Officer submitted its report on 1.11.1991 holding the charges of gross-misconduct and wilful insubordination and disobedience of lawful and reasonable orders of the management. 5. On account of the gross-misconduct of the respondent an Inquiry Officer was appointed on 1.5.1989. The Inquiry Officer issued notice to the respondent for conducting an inquiry. The Inquiry Officer submitted its report on 1.11.1991 holding the charges of gross-misconduct and wilful insubordination and disobedience of lawful and reasonable orders of the management. The Disciplinary Authority forwarded the report of the Inquiry Officer to the respondent who then made a representation to the petitioner with regard to the said report. 6. The Disciplinary Authority vide its letter dated 16.1.1992 did not concur with the findings of the Inquiry Officer on the ground that the charge of going slow were not in order, but held the respondent guilty of the misconduct. The Disciplinary Authority passed an order dated 23.3.1992. The operative portion of the order is as under: (a) For a gross misconduct of wilful insubordination and dis-obedience of lawful and reasonable orders of the Management vide Clause 19.5(e) of Bipartite Settlement, 1966. Stoppage Of One Increment With Cumulative Effect 7. After passing of this order, the workman approached the Appellate Authority who had passed an order dated 3.1.1995 upholding the order of the Disciplinary Authority. Aggrieved by this, the petitioner filed a claim with the Industrial Tribunal. 8. The Industrial Tribunal vide award dated 22.9.2004 upheld the findings of the inquiry proceedings holding the respondent-workman guilty of insubordination and disobedience. However, the Industrial Tribunal did not countenance the punishment of removal from service. Finding the charges proved against the respondent-workman as simple misconduct, the Industrial Tribunal set aside the punishment of removal from service and in lieu thereof directed the petitioner to withhold one increment of the respondent-without cumulative effect and to pay him arrears that arise out of his charged quantum of punishment. 9. Learned Counsel for the petitioner submits that the award dated 22.9.2004 is perverse and in fact shows complete non-application of mind. The case of the petitioner is that on the one hand, the Tribunal has come to a categorical finding that the charge of insubordination and disobedience have been proved against the respondent and in the very next sentence the Tribunal has observed that the inquiry is liable to be set aside. The case of the petitioner is that on the one hand, the Tribunal has come to a categorical finding that the charge of insubordination and disobedience have been proved against the respondent and in the very next sentence the Tribunal has observed that the inquiry is liable to be set aside. In the same very paragraph, the Presiding Officer goes on to hold that the quantum of major punishment has been awarded to the workman, and in fact, stoppage of one increment with cumulative effect is sufficient in the facts and circumstances of the case. 10. The scope of interference of writ Courts with respect to quantum of punishment has been the subject-matter of various judicial decisions. .11. In B.C. Chaturoedi v. Union of India and Ors.: (1996) ILLJ1231SC , it was observed: .A review of the above legal position would establish that the Disciplinary Authority, and on appeal the Appellate Authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the Disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. .12. In V. Ramana v. A.P.S.R.T.C. and Ors.: (2005)IIILLJ725SC , the Apex Court, while relying upon various judgments dealing with the seminal issue of scope of interference of Writ Courts in deciding the quantum of punishment, the Apex Court observed: .10. The common thread running through in all these decisions is that the Court should not interfere with the administrators decision unless it was .illogical or suffers from procedural impropriety or was shocking to the conscience of the Court in the sense that it was in defiance of logic or moral standards. The common thread running through in all these decisions is that the Court should not interfere with the administrators decision unless it was .illogical or suffers from procedural impropriety or was shocking to the conscience of the Court in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesburys case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. 11. To put differently unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/ Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed. 13. Very recently, in U.P.S.R.T.C. v. Ram Kishan Arora 2007 LL.R. 755 (SC), the Apex Court has opined that the High Courts while exercising powers under writ jurisdiction cannot deal with aspects like whether quantum of punishment meted out by management to a workman for a particular misconduct is sufficient since it is for a Labour Court/Industrial Tribunal to modify the punishment that too by stating supporting reasons. 14. A perusal of the award dated 22.9.2004 shows that the Industrial Tribunal has not given any reason as to why the punishment of stoppage of one increment with cumulative effect has been set aside. The findings and observations of the Industrial Tribunal upholding the charges of gross, misconduct against the respondent are staggeringly inconsistent with the quantum of punishment it has eventually awarded. After expressly concurring with the findings of the inquiry report dated 1.11.1991, it is unfathomable how the Industrial Tribunal found the misconduct of the respondent simple and not gross in nature. Further, merely stating that the respondent had committed simple misconduct was not sufficient the Industrial Tribunal ought to have justified the reasons for mitigating the punishment that had been awarded to respondent. 15. For the reasons aforestated, the award dated 22.9.2004 is perverse and is set aside. Further, merely stating that the respondent had committed simple misconduct was not sufficient the Industrial Tribunal ought to have justified the reasons for mitigating the punishment that had been awarded to respondent. 15. For the reasons aforestated, the award dated 22.9.2004 is perverse and is set aside. Consequently, the writ petition is allowed, leaving the parties to bear their own costs. In view of the fact that the respondent has neither entered appearance, a sum of Rs. 7,500/- deposited by the petitioner will be returned to the petitioner through Counsel by the Registry. Petition allowed