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2009 DIGILAW 61 (JHR)

Central Coalfields Limited v. Narendra Kumar Giri

2009-01-13

D.G.R.PATNAIK, R.K.MERATHIA

body2009
JUDGMENT By Court This intra court appeal has been filed by the Management, against the judgment dated 13.9.2004, passed in C.W.J.C. No. 2109 of 1996 ( R ) by learned Single Judge, allowing the writ petition in part by setting aside the punishment of dismissal and directing the Management-appellant to prescribe proper punishment other than dismissal. 2. The facts, in short, are as follows. Respondent-writ petitioner-workman was served with a charge sheet dated 20- 21/1/1995, which reads as follows:- “ To, Sri N.K. Giri, Foreman, D.G. Set, Bachra. You are hereby required to state as to why disciplinary action even amounting to dismissal from the service of the C.C. Ltd., should not be taken against you under the Certified Standing Order applicable to this mine by which you are covered on account of the following charges:- On 8.1.95 ( Sunday) at about 3.45 P.M. when 11 KV DVC Ray-Bachra Feeder Power was failured and due to this maintenance work of Mine No. 1 was stopped. Shri Biswajit Prasad, Tele Optr., Bachra was sent to you personally to ask you to give power from D.G. Set for maintenance work but you refused to give power with present Sanctioned Manpower. You also refused to give D.G. Power when the E.E. (E&M), Bachra workshop personally approached and told to give D.G. Power you have flately refused and told him that you will only start the Engine when two extra manpower of D.G. Plant is sanctioned by Project Officer, Bachra. Due to which the maintenance work of Mine No. 1 has been suffered badly and effected the Production. This is a serious misconduct on your post. If the above charges are proved they would constitutes acts subversive of discipline and also constitute misconduct under the Clause 17 (I)(C), (f) ( I) of the S.O. No. 17(i) of the aforesaid standing orders and even otherwise considering what is misconduct has to be reasonably construed……….” 3. It may be mentioned here that two other chargesheets were also served on the workman alleging certain charges but the same have not been found proved by learned Single Judge. 4. After holding domestic enquiry, the workman was dismissed from service by the disciplinary authority by order dated 9.8.1995 ( Annexure-12). This order was challenged by the workman by filing the writ petition in question. 4. After holding domestic enquiry, the workman was dismissed from service by the disciplinary authority by order dated 9.8.1995 ( Annexure-12). This order was challenged by the workman by filing the writ petition in question. During the pendency of the writ petition, the workman preferred appeal before the appellate authority against his dismissal. The appeal was dismissed. That order was also challenged in the writ petition. 5. Learned Single Judge, inter alia held as follows:- “ So the argument of the learned counsel for the petitioner that in absence of proving the actual loss caused to the management, this charge is not proved, is not sustainable and the finding of the disciplinary authority that this was a case of misconduct under the aforesaid circumstances, is completely justified and for that the petitioner deserves punishment”. But learned Single Judge observed that the opening lines of the chargesheet were indicative of a preconceived mind; and that the past service records of the petitioner was not found unclean by the disciplinary authority; and that the punishment of dismissal was excessive. The order of dismissal was quashed with a direction to the Management to pass fresh order of punishment, other than dismissal. This order is under challenge in this appeal. 6. Mr. Das, in support of the appeal, submitted that when charge no. 1 was found proved by learned Single Judge, the punishment awarded for such misconduct, as per the standing order, should not have been interfered. He further submitted that in case of the charges attracting major punishment, there is nothing wrong if the workman was made aware of the consequences in the charge sheet. He further submitted that observation of the disciplinary authority regarding the past conduct of the workman has been misconstrued by learned Single Judge. Referring to the records of the writ petition, he submitted that for using abusive language and threats to the superior officer, a complaint was lodged against the workman in past. But as he asked for apology, on his undertaking to behave properly in future, he was pardoned. He also submitted that after the petitioner was dismissed from service, he himself gave resignation on 16.2.1995 vide Annexure-3 but the same was not accepted in view of the pendency of the departmental proceeding against him. 7. Mrs. Pal, appearing on behalf of the workman on the other hand supported the impugned order. He also submitted that after the petitioner was dismissed from service, he himself gave resignation on 16.2.1995 vide Annexure-3 but the same was not accepted in view of the pendency of the departmental proceeding against him. 7. Mrs. Pal, appearing on behalf of the workman on the other hand supported the impugned order. She submitted that if the alleged charges, if proved, attracted punishment of dismissal, it was unnecessary to mention the consequence in the chargesheet itself. This clearly indicates the preconceived mind of the Management and therefore the order of dismissal was bad. Regarding past conduct, she submitted that the same were beyond the scope of the present proceeding and moreover the workman was pardoned and the matter ended then. She further submitted that in any event the punishment was harsh. She relied on paragraph 18 of- AIR 1996 SC 484 -B.C. Chaturvedi Vs. Union of India, and ( 2003) 4 SCC 364-Chairman and Managing Director, United Commercial Bank Vs. P.C. Kakkar. 8. In our opinion, the impugned order cannot be sustained for the following reasons. Even if the past conduct of the workman is ignored, the aforesaid charge of misconduct was found proved by the disciplinary authority, the appellate authority and by the learned Single Judge also. Even in the cases relied by Mrs. Pal, it is said as follows:- “17. The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of this Court in State of Orissa Vs. Bidyabhushan Mohaparta, AIR 1963 SC 779 held that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassessable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High Court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment “ can lawfully be imposed”, it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment “ can lawfully be imposed”, it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court had no jurisdiction, if the findings prima facie made out a case of misconduct, to direct the Governor to reconsider the order of penalty. This view was reiterated in Union of India V. Sardar Bahadur, (1972) 2 SCR 218 ; ( 1972 Lab I.C. 627). It is true that in Bhagat Ram V. State of Himanchal Pradesh, AIR 1983 SC 454 , a Bench of two Judges of this Court, while holding that the High Court did not function as a court of appeal, concluded that when the finding was utterly perverse, the High Court would always interfere with the same. 18. 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 substituted 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, imposed appropriate punishment with cogent reason in support thereof”. -B.C. Chaturvedi ( supra). “11. The common thread running through in all these decisions is that the court should not interfere with the administrator’s 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 Wednesbury case 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. In view of what has been stated in Wednesbury case 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.” --P.C. Kakkar (supra). Similar view was expressed in the case reported in ( 2006) 6 SCC 794 Union of India Vs. K.G. Soni. In the present case also, it has not been said by learned Single Judge, as to why the punishment was disproportionate. Only because in the chargesheet, the punishment was indicated, and on the ground that the past records of the workman was found not unclean, the punishment could not be held to be excessive, by learned Single Judge. 9. In the facts and the circumstances and the legal position, noticed above, this appeal is allowed. The impugned order is set aside. The writ petition is dismissed and consequently the order of punishment of dismissal of the workman is affirmed. However, no costs.