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Madhya Pradesh High Court · body

2017 DIGILAW 1123 (MP)

Chief General Manager v. D. J. Mukherjee

2017-11-02

VIVEK AGARWAL

body2017
JUDGMENT : VIVEK AGARWAL, J. 1. Petitioner has filed this petition being aggrieved by the order dated 20.11.2015 passed by CGIT, Jabalpur in Case No. LC/R/130/03, whereby, the punishment handed over to the respondent employee who is the member of the National Federation of Telecom Employee, has been set aside and it has been directed that order of compulsory retirement as was passed by the disciplinary authority is not proper and legal and the second party was directed to reinstate the workman with continuity of service with 50% of back wages. It is petitioner's contention that the order passed by CGIT is not in accordance with law and no such direction for reinstatement of the workman could have been given by the CGIT, looking to the gravity of the charges levied on the worker and which were proved. It is also submitted that the Tribunal has failed to see material evidence which was available on record and, therefore, the impugned order is perverse and needs to be set aside. 2. Learned senior counsel for the petitioner however, admits that during the course of these proceedings, the workman has superannuated from service in the year, 2010 and now, the reliefs are only in the shape and form of monetary benefits. 3. Shri Arvind Shrivastava, learned counsel for the respondent, on the other hand submits that in fact, the workman was exonerated in the departmental inquiry and the inquiry officer had categorically mentioned that the charges levied on the employee Shri R.D. Khampariya of showing lose behavior, disobedience and causing disruption in the work was not made out and, therefore, the workman was exonerated. He also submits that the disciplinary authority has not adverted to any material on record to show as to how the findings recorded by the inquiry officer were perverse. He further submits that under similar facts and circumstances, other charged employees have been exonerated fully or have been allowed to undergo minor penalties like stoppage of one or two increments, whereas, the respondent-workman was made to compulsorily retire in the year, 2000 when he was still left with ten years to superannuate from service. He further submits that under similar facts and circumstances, other charged employees have been exonerated fully or have been allowed to undergo minor penalties like stoppage of one or two increments, whereas, the respondent-workman was made to compulsorily retire in the year, 2000 when he was still left with ten years to superannuate from service. It is also submitted that workman Shri R.D. Khampariya, was working as Fitter, Grade-II in the tower shop and he was in fact imposed with disproportionate penalties inasmuch as not only he was compulsorily retired but also it was directed that between 06.02.1991 when workman was placed under suspension till passing of the order of compulsory retirement i.e. 17.10.2000, the period of suspension will not be computed for any other purpose then the subsistence allowance which was already paid to the workman. On the basis of such premise, he has supported the order passed by the CGIT and prays for dismissal of the writ petition. 4. The issue, which is to be considered and decided in the present case is in regard to the principle of proportionality i.e. whether for the charge of misconduct whether the workman has been proportionately awarded with aforesaid punishment of compulsory retirement with denial of period of suspension to be regularized for any other purpose except computation of that period towards the pensionary service. 5. The charge against the workman was that he had shown disobedience and lack of discipline by provoking others not to work. The prosecution had examined as many as six witnesses and Mrs. Nair, learned senior counsel admitted that only two witnesses out of six namely Shri N.S. Rajpoot and Shri Bharat Kasayap supported the case of prosecution. It has also come on record that though the chargesheet was issued in the year, 1991 but punishment was inflicted in the year, 2000. It has also come on record that chargeman Shri Akram, who was main prosecution witness said that the agitation was due to suspension of three chargemen and, therefore, some slogan shouting was made before the chamber of Assistant Engineer but he had not seen charged officer Shri R.D. Khampariya, at the place of occurrence of such incident. It has also come on record that chargeman Shri Akram, who was main prosecution witness said that the agitation was due to suspension of three chargemen and, therefore, some slogan shouting was made before the chamber of Assistant Engineer but he had not seen charged officer Shri R.D. Khampariya, at the place of occurrence of such incident. Similarly, another prosecution witness Shri Balkishan Singh, did not support the story of presence of Shri R.D. Khampariya, in the section whereas, Shri Bharat Kashyap, admitted that he did not remember the date of the incident and could not point out that the alleged incident was the same in regard to which he was giving evidence. Similarly, another prosecution witness Shri S.C. Khera did not corroborated the allegation of any misdeed by the charged employee. Statement of Shri Narayan Singh Rajpoot has been disbelieved and has not been taken into consideration. 6. In view of such evidence, the inquiry officer did not found the charges proved. The principle of proportionality requires the Court to apply a three stage test: (1) Whether, the objective sought to be achieved is relevant and sufficiently important to justify limiting the fundamental rights: (2) Whether, the means chosen to limit that right are rationally fair and not arbitrary, and (3) Whether, the means used impaired right as minimal as reasonably possible. 7. The law is that a fair balance should be struck between the rights of the individual and the interest of the community. In fact what Courts are normally required to look into is whether, the findings recorded in the disciplinary proceedings are based on the evidence or are perverse. As has been discussed above, the inquiry officer has exonerated the workman thereafter, disciplinary authority was required to show that how the findings of the inquiry officer were perverse and are not based on the material available on record. But no such efforts have been made by the disciplinary authority. As has been discussed above, the inquiry officer has exonerated the workman thereafter, disciplinary authority was required to show that how the findings of the inquiry officer were perverse and are not based on the material available on record. But no such efforts have been made by the disciplinary authority. Disciplinary authority has also not adverted to the fact that under similar facts and circumstances, why other officers who too were charged, have been inflicted with minor penalties, therefore, the order of reinstatement with 50% of back wages in place of the order of compulsory retirement as has been passed by the learned Labour Court cannot be faulted with especially when it is apparent that for shouting slogan in support of three suspended chargeman/colleagues cannot be said to be such a grave misconduct so as to invite major penalty of compulsory retirement. Thus, this Court is of the opinion that the principles of proportionality have been violated by the disciplinary authority. Thus, on the touch stone of proportionality, the impugned order passed by the CGIT does not call for any interference, thus, petition fails and is hereby dismissed.