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2013 DIGILAW 583 (MP)

Union of India v. Ashok Kumar Tiwari

2013-05-02

K.K.TRIVEDI

body2013
JUDGMENT : This writ petition under Article 227 of the Constitution of India is directed against the award dated 8-2-2002 passed by the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur (hereinafter referred to as CGIT for brevity) in Case No. 219/1993, whereby answering the reference made by the competent Government, in favour of the workman, the respondent herein, the award has been passed. 2. Facts giving rise to filing of this petition in short are that the respondent, who was an employee of the petitioner working as Store keeper was charge sheeted on 18-7-1988 levelling against him certain charges of gross misconduct, mainly alleging by delay in counting of store item and keeping the item unaccounted for, for a considerable period. The other charge against the respondent No. 1 was tampering with Government documents, so as to unbecoming of a Government servant. After the receipt of the charge-sheet, the respondent No. 1 submitted that because of the work pressure, certain articles could not be accounted for, but there was no deliberate omission on the part of the respondent No. 1. No financial loss was caused to the employer. It was contended by him that the misconduct was not such that he should be punished in such an enquiry. However, without accepting the reply submitted by the respondent, after conducting the enquiry, a punishment of dismissal from the post was imposed on him. The reference against the dismissal was made before the appropriate Government and since the appropriate Government referred the matter to the CGIT, the case aforesaid was registered. The reference was made in the following manner : - "Whether the action of the management of Vehicle Factory, Jabalpur (MP) in terminating the services of Shri Ashok Kumar Tiwari, Ex. Store Keeper w.e.f. 5-2-1992 is justified. If not, what relief he is entitled to?" 3. The respondent No. 1 filed his statement of claim and the petitioner also submitted the statement of claim. Affidavit in support of the statement of claims were filed by the petitioner. After completing the trial, the CGIT came to the conclusion that because of the work pressure on the respondent No. 1, if certain acts were done by him of not making entries in the store records or erasing an entry to make the store record straight, such a major punishment of dismissal from service should not have been imposed on him. The CGIT reached to the conclusion that if an admission was made by the respondent No. 1 in his reply, it was to be treated as a narration of correct facts with a view to explain the circumstances in which he has erased the entry made in the record. Thus, the CGIT reached to the conclusion that the respondent No. 1 was punished improperly and while answering the reference in favour of respondent No. 1 directed his reinstatement in service with all the backwages and other consequential benefits. This being so, the award passed by the CGIT is called in question in this writ petition. 4. It is, vehemently, contended by the learned counsel for the petitioner that when specifically a finding was given that the departmental enquiry was properly conducted against the respondent No. 1, there was no question of interfering in the order of penalty and, therefore, the CGIT exceeded in exercise of its jurisdiction in answering the reference in favour of the respondent No. 1. As such, it is contended that the award passed by the CGIT is bad in law. Referring various case laws learned counsel for the petitioner contended that if the settled position of law is examined, it would be clear that in such disciplinary proceedings, it was not open to the CGIT to interfere in the order of punishment and as such, the award is bad in law. 5. Per contra, it is contended by learned Senior counsel for the respondent No. 1 that the respondent-workman has categorically pointed out in his reply the fact that he was working as a Store Keeper, was under the great pressure of work and in view of this, if there were certain minor mistakes committed in not recording the articles kept in the store in the register or making an entry by correction or erasing of the entry in the register, it could not have been said that the respondent No. 1 has dishonestly done so, so as to cause a loss to the employer. It is contended that the charge-sheet should have been issued under the provisions of Central Civil Services Classification Control and Appeal) Rules, 1965 (hereinafter referred to as Rules for short) only in certain specific circumstances as indicated in Rule 14 of the aforesaid Rules. It is contended that the charge-sheet should have been issued under the provisions of Central Civil Services Classification Control and Appeal) Rules, 1965 (hereinafter referred to as Rules for short) only in certain specific circumstances as indicated in Rule 14 of the aforesaid Rules. It is contended that if there was a theft of Government property, or was violation of the Standing Order, or failure to maintain absolute integrity or such a conduct of unbecoming of a Government servant, then only the regular charge-sheet should have been issued. The fact remains that there was no shortage of articles in the store. There was nothing to indicate that any loss was caused to the employer and, as such, it was not justified on the part of the petitioner to impose such a major punishment. If such findings were recorded by the CGIT that penalty was grossly disproportionate to the circumstances available in the case and the charges levelled against the respondent No. 1 and the said penalty is interfered by the CGIT, it cannot be said that any illegality was committed by CGIT in granting award in favour of respondent No. 1. 6. Heard learned counsel for the parties at length and perused the record. 7. True it is that on various occasions, the Apex Court has dealt with scope of interference in the enquiry and has categorically held, what should be the scope of interference in such a penalty, but it is also true that in all such cases, several factors were taken into consideration. It is also true that on occasion, the Apex Court has held that if major penalties imposed on an employee is disproportionate to the charges levelled against him, or if the Court feels that such penalty cannot be accepted by the Courts, or can be said to be such disproportionate that a man of prudent mind would not have accepted the same, the Court can look into the penalty and interfere in the order of penalty. The judicial review is not restricted in such a case. In case of B. C. Chaturvedi vs. Union of India, AIR 1996 SC 484 , the Apex Court has categorically laid down certain principles to be taken note of. The judicial review is not restricted in such a case. In case of B. C. Chaturvedi vs. Union of India, AIR 1996 SC 484 , the Apex Court has categorically laid down certain principles to be taken note of. Similar is the situation in other laws subsequently laid down by the Apex Court, therefore, it cannot be said that in any circumstances, interference in the order of penalty was not justified. Learned counsel for the petitioner has put his reliance in case of Ramesh Chandra Sharma vs. Punjab National Bank and another, (2007) 9 SCC 15 , wherein the Apex Court was dealing with a case where an employee who was serving in the bank stood superannuated and after the superannuation, the penalty of dismissal from service was imposed on him. Since it was permissible in view of the specific regulations of the Bank, the Apex Court reached to the conclusion that interference in the order of punishment only because of the fact that the employee had stood superannuated was not permissible. Similar is the situation with respect to the other case relied on by learned counsel for the petitioner where in view of the specific circumstances, the interference in the order of punishment was said to be bad. Here the case in hand is that the CGIT has found that the punishment was disproportionate to the gravity of the misconduct and, therefore, the law laid down by the Apex Court in the case of U.P.SRTC vs. Ram Kishan Arora, (2007) 4 SCC 627 would not be attracted. Similar is the situation with respect to the interference in an order of penalty as has been pointed out by the Apex Court in the case of Mithilesh Singh vs. Union of India and others, AIR 2003 SC 1724 , wherein also mitigating circumstances were not available to indicate that the penalty was disproportionate or shocking to the conscience of a prudent man. Almost identical is the situation in the case of South Indian Cashew Factories vs. Kerala State Cashew Development Corpn. Ltd., and others, (2006) 5 SCC 201 . 8. Here in the case in hand, these aspects are considered by the CGIT and it has been said that such a misconduct of the respondent No. 1 should not have been treated to be such grave misconduct for which he should have been dismissed from the service. Ltd., and others, (2006) 5 SCC 201 . 8. Here in the case in hand, these aspects are considered by the CGIT and it has been said that such a misconduct of the respondent No. 1 should not have been treated to be such grave misconduct for which he should have been dismissed from the service. In the considered opinion of this Court, the law relied on by learned counsel for the petitioner defers from fact to fact involved in each case. In the present case, since there are specific finding recorded by the CGIT that the punishment of dismissal was disproportionate to the charges levelled against the respondent No. 1, it was not correct on the part of the petitioner to say that such a findings could not have been given by the CGIT. 9. However, it is contended by learned counsel for the petitioner that in case the CGIT was of the view that the workman should not have imposed such a major punishment, it should have been remitted back the matter to the disciplinary authority for imposition of a minor penalty or any other suitable penalty looking to the misconduct of the respondent No. 1. Simply answering the reference in favour of the respondent No. 1 means that he is to be reinstated in service with all the backwages and other privileges even after acceptance and admission of misconduct. The alleged submission of learned counsel for the petitioner has some force, but it is to be seen that it was not the scope of reference made by the appropriate Government. If the penalty was not justified, there was no occasion for the CGIT to remit back the matter to the disciplinary authority of petitioner for imposition of any other penalty on the respondent No. 1. However, the facts as have been stated are taken note of. The punishment was awarded to the respondent No. 1 on 5-2-1992 by his dismissal from service. Such order was ultimately set aside after 10 years by the CGIT in 2002. This petition has remained pending before this Court for a long period. The petitioner was directed to comply with the provisions of section 17-B of the Industrial Disputes Act. The punishment was awarded to the respondent No. 1 on 5-2-1992 by his dismissal from service. Such order was ultimately set aside after 10 years by the CGIT in 2002. This petition has remained pending before this Court for a long period. The petitioner was directed to comply with the provisions of section 17-B of the Industrial Disputes Act. It is not known whether such a compliance was done or not, and whether the respondent No. 1 has been reinstated or paid the last pay drawn in compliance of interim order of this Court. It is still not clear whether the respondent No. 1 has reached to the age of superannuation or not after 20 long years from the date of order of dismissal. 10. That being so, it would not be justified to remit back the matter now to the disciplinary authority for imposing any punishment on respondent No. 1. However, the ends of justice would subserve in case the consequential benefits or backwages granted to the respondent No. 1 by the CGIT are reduced to some extent which would cover up the penalty of minor nature coupled with the sufferings of litigation for such long period. Consequently, it is directed that on reinstatement, the respondent No. 1 would get 75% of backwages and all other consequential benefits. The amount already paid to the respondent No. 1 by the petitioner, if any on interim stay of this Court, in compliance of provisions of section 17-B of the Industrial Disputes Act, would be adjusted from the amount payable to the respondent No. 1. The order of CGIT is modified to the extent indicated hereinabove and the petition is finally disposed of. There shall be no order as to costs. Order accordingly.