Umesh Kalyanrao Galande vs M.S.R.T.C., Akola Division, ...
2017 Latest Caselaw 4120 Bom

                                                                            LPA.266.08
                                             1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR.


                    LETTERS PATENT APPEAL NO. 266 OF 2008
                                      IN
                        WRIT PETITION NO. 1816 OF 2008


     Umesh Kalyanrao Galande,
     aged about 41 years,
     R/o Anjangaon Road, Akot,
     Tah. Akot, Distt. Akola.            ....                        APPELLANT/
                                                                     PETITIONER

                     // VERSUS //         

     Maharashtra State Road Transport
     Corporation, Akola Division, Akola,
     through its Divisional Controller.  ....                      RESPONDENT


     Mr. B.M. Khan, Advocate for appellant.
     Mr. V.G. Wankhede, Advocate for respondent.  


                     CORAM :  B.P. DHARMADHIKARI & ROHIT B. DEO, JJ.

DATED : JULY 6, 2017.

ORAL JUDGMENT (PER ROHIT B. DEO, J.).

1] Heard Shri B.M. Khan, learned Counsel for the appellant

and Shri V.G. Wankhede, learned Counsel for respondent

Corporation.

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2] Only contention in this appeal which Shri Khan, learned

Counsel for the appellant, urges is that the punishment of dismissal

imposed for proved misconduct of contesting of election without

permission of the employer is so shockingly disproportionate as to

shock the conscience of the Court.

3] Relevant facts are few and undisputed. The appellant, a

humble helper with the respondent Corporation, was impelled to

contest elections to the Municipal Council, Akot scheduled on

24.11.1991. He applied on 25.10.1991 for permission to contest the

election. Such permission is contemplated under Regulation 48-B of

the Bombay State Transport Employees Services Regulations, to

which we shall advert at a later stage in the judgment.

4] The last date of withdrawal of nomination was 11.11.1991.

However, on 22.11.1991, the employer Corporation conveyed the

decision of refusal of permission to contest the election. Undeterred

by the refusal of the permission, the appellant went ahead and

contested the election. The political misadventure proved costly, as

fate would ordain, the employee lost both, the election and the

employment.

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5] The appellant was served with charge-sheet dated

11.11.1993 inter alia alleging gross insubordination and wilful

disobedience of a lawful order. The charge is founded on the

premise that by contesting the elections to Akot Municipal Council,

the appellant defied the provisions of Regulation 48-B and the

Circular dated 28.11.1991.

6] The charge-sheet dated 11.11.1993 culminated in a

departmental enquiry in which the appellant/employee was held guilty

of the alleged misconduct. The competent Authority under the

Discipline & Appeal Procedure, by an order dated 02.11.1994

imposed the punishment of stoppage of increments. The appellant

accepted the quantum of punishment and chose not to avail the

appellate remedy under the Discipline and Appeal Procedure.

However, the Appellate Authority in purported exercise of powers

under Clause 9 issued a show cause notice dated 17.04.1995 calling

upon the appellant to show cause as to why he should not be

dismissed.

7] Bare perusal of the show cause notice would reveal that

the appellate authority after application of mind to the entire inquiry

record virtually recorded a final finding holding that the punishment of

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stoppage of increments should be enhanced and that the appellant

deserves to be dismissed from service. The employee was called

upon to show cause as to why the decision reached should not be

given effect to. The appellate Authority has recorded a finding that an

employee who is inclined to take interest in social or political work

would not be in a position to do justice to the employment with the

Corporation. The text and tenor of the show cause notice would

suggest that the show cause was only an empty formality and the

appellate Authority was merely giving a lip service to the principles of

natural justice and provisions of Clause 9 of the Discipline & Appeal

Procedure. Be that as it may, the employee by reply dated

19.4.1995 pleaded that the penalty of dismissal would be extremely

inhuman.

8] The appellant/employee challenged the show cause notice

issued by the Appellate Authority before the Labour Court in

Complaint (ULP) No.180/1995, which came to be decided by

judgment and order dated 22.05.1995.

9] The Labour Court was pleased to allow the complaint,

inter alia holding that the respondent Corporation has not exercised

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managerial powers in good faith and that the punishment of dismissal

is disproportionate and harsh. The Labour Court recorded a finding

in paragraph no.8 of the judgment, that two employees charged with

similar misconduct have been imposed punishment of stoppage of

increments. This finding of the Labour Court that other employees

charged with similar misconduct have been let off with relatively minor

punishment, was not disputed by the respondent Corporation either

before the Industrial Court or before the learned Single Judge. In

fairness to Shri Wankhede, learned Counsel who appears for

respondent Corporation, he does not dispute that other employees

who were charged with similar misconduct have been imposed lesser

punishment.

10] Dissatisfied with the judgment of the Labour Court, the

Corporation moved the Industrial Court in Revision (ULP) No. 41/98

which was allowed by judgment and order dated 16.2.2008. Armed

with the order of the Industrial Court, the respondent Corporation

promptly issued the dismissal order dated 20.2.2008. The employee,

on the premise that the order of dismissal is only consequential to the

show-cause notice which was under challenge before the Labour

Court and Industrial Court, and that it would be an empty formality to

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challenge the consequential order of dismissal before the Labour

Court, approached this Court in Writ Petition No. 1816/08. The said

Writ Petition came to be rejected by the learned Single Judge by

judgment and order dated 25.4.2008.

11] Mr. B.M. Khan, the learned Counsel for the appellant,

would urge that the order of dismissal for the proven misconduct of

having contested the election without the permission of the employer

condemns the employee to economic death and is, therefore, so

shockingly disproportionate as would shock the conscience of the

Court. Mr. Khan would further urge that the Regulation 48-B does not

impose a total prohibition on an employee from contesting the

election. The said Regulation only mandates that the election should

be contested with the permission of the employer, which Mr. Khan

submitted cannot be withheld or refused at the whims and fancies of

the employer-Corporation. Mr. Khan would further submit that the

refusal of the permission on 22.11.1991 was highly belated and since

the last date of the withdrawal of the nomination form was

11.11.1991, the employee went ahead and contested the election

scheduled on 24.11.1991. Such conduct may be rash or casual but

would certainly not be dishonest or tainted with moral turpitude. Mr.

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Khan would further contend that in the teeth of the fact that the

Corporation employer imposed a lesser penalty on employees

charged with similar misconduct, the decision of the Appellate

Authority to enhance the punishment to dismissal is ipso facto

unconscionable and falls foul of the guarantee to equality enshrined

in Article 14 of the Constitution of India.

12] Shri V.G. Wankhede, learned Counsel for the respondent,

supports the view taken by the Industrial Court and the learned Single

Judge. Shri Wankhede would contend that the appellate Authority

having imposed a punishment, which is provided under the relevant

Service Rules, this Court in Writ Petition should be slow to judicially

review the same. Mr. Wankhede would urge that judicial review of a

punitive order is a secondary review and it would be in the rarest of

rare cases that the Writ Court would be interfering with the quantum

of punishment.

13] We are not unmindful of the settled legal position that the

scope of judicial review is extremely limited where the employer has

imposed a punishment which could have been lawfully imposed. We

are alive to the dictum of the Supreme Court in Om Kumar &

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others .vs. Union of India reported in (2001) 2 SCC 386 in which the

Supreme Court has propounded that the test for exercise of judicial

review would be the test of irrationality or the Wednesbury principle

(Associated Provincial Pictures Limited .vs. Wednesbury

Corporation (1948) 1 KB 223). Their Lordships observed in

paragraph 24 in Om Kumar's case as under :-

"24. We agree that the question of the quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well known principles known as Wednesbury principles. (See Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 223. This Court had occasion to lay down the narrow scope of the jurisdiction in several cases. The applicability of the principle of 'proportionality' in Administrative law was considered exhaustively in Union of India v. Ganayutham, [1997] 7 SCC 463 where the primary role of the administrator and the secondary role of the Courts in matters not involving fundamental freedoms, was explained".

We are further conscious of the law laid down in State of Meghalaya

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& others .vs. Mecken Singh N. Marak reported in (2008) 7 SCC 580

that it would not suffice for the High Court to conclude that the

punishment is shockingly disproportionate and the High Court would

have to spell out the reasons for reaching such a conclusion. The

Supreme Court inter alia observes thus :-

"14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice."

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14] We are satisfied that the punishment of dismissal imposed

on the appellant employee is so shockingly disproportionate as would

shock the conscience of this Court. However, before we record our

reasons for reaching the said conclusion, it may be apposite to refer

to Regulation 48-B of the Bombay State Transport Employees

Services Regulations, which is reproduced below :-

"48(B) : No employee shall take active part in any politics or demonstration, or contest the election to any Cantonment Board, or Gram Panchayat, or Municipal Corporation, or Zilla Parishad, or Parliament or to an legislature, except with the permission of the Vice-President and the General Manager of the Corporation."

The Regulation does not impose a blanket prohibition on an

employee to contest the election. What is envisaged is that an

employee should seek the permission of the Corporation. A similar

provision in Section 42(2) of the Maharashtra Employees of Private

Schools (Conditions of Service) Regulation Act, 1977 is held to be

unconstitutional by this Court in the case of Bombay University and

College Teachers' Union .vs. State of Maharashtra reported in

1990(2) BCR 324. We are, however, not required to examine the

constitutional validity of Section 48-B since such a contention was

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neither raised before the learned Single Judge nor is urged in the

present appeal.

15] Shri V.G. Wankhede, learned Counsel for the respondent/

Corporation, has invited our attention to Circular dated 25.11.1991

which evidences a decision of the Board of Directors of the

Corporation to the effect that an employee would be required to

tender resignation before contesting an election. The said decision of

the Board of Directors may be vulnerable to the vice of inconsistency

with Regulation 48-B which is a piece of delegated legislation. We,

however, refrain from any further observation on the said aspect as

the import and implication of the Circular dated 25.11.1991 is not

relevant for deciding the appeal.

16] We may now proceed to record our reasons for holding

that the punitive order of dismissal is so grossly disproportionate to

the proved misconduct as to be termed unconscionable. The reasons

are as under :-

I. It is not in dispute that for similar misconduct other employees

have been imposed lesser punishment of stoppage of

increments. The discrimination is not only arbitrary but would

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be an unfair labour practice under the Maharashtra Recognition

of Trade Unions and Prevention of Unfair Labour Practices Act.

We are further of the view that the misconduct of contesting the

election despite rejection of the permission, would in the facts

and circumstances of the case, be minor and technical. We

may usefully make a reference to the following observations of

the Supreme Court in the case of Colour-chem Limited vs.

A.L. Alaspurkar & others reported in (1998) 3 SCC 192 :

"The aforesaid observations in this decision fall in line with the observations in the earlier decision of this Court in Hind Construction (supra). Consequently it must be held that when looking to the nature of the charge of even major misconduct which is found proved if the punishment of dismissal or discharge as imposed is found to be grossly disproportionate in the light of the nature of the misconduct or the past record of the employee concerned involved in the misconduct or is such which no reasonable employer would ever impose in like circumstances, inflicting of such punishment itself could be treated as legal victimisation. On the facts of the present case there is a clear finding reached by the Labour Court and as confirmed by the Industrial Court that the charges levelled against the respondent- delinquents which were held proved even though reflecting major misconducts, were not such in the light of their past service record as would merit imposition of punishment of

LPA.266.08

dismissal. This factual finding would obviously attract the conclusion that by imposing such punishment the appellant- management had victimised the respondent-delinquent. Imposition of such shockingly disproportionate punishment by itself, therefore, has to be treated as legal victimisation apart from not being factual victimisation as on the latter aspect the Labour Court has held against the respondent- workmen and that finding has also remained well sustained on record. Thus it must be held that the management even though not guilty of factual victimisation was guilty of legal victimisation in the light of the proved facts which squarely attracted the ratio of the decisions of this Court in Hind Construction (supra) and Bharat Iron, Works (supra)"

II. The proven misconduct is not tainted by moral turpitude. The

employee may have acted rashly or negligently or casually in

going ahead with his resolve to contest the election despite

being conveyed the employer's refusal of permission which

refusal was conveyed two days prior to the date of polling. The

employee may be faulted in not withdrawing his nomination

form on 11.11.1991, inasmuch as till then he had not received

any response to his application dated 25.10.1991 seeking

permission to contest the election. We are of the view that the

rashness or casualness displayed by the appellant is neither

dishonest nor is of such a nature as would undermine the

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discipline and morale of the other employees of the

Corporation.

III. The charge is of insubordination and wilful disobedience of

lawful orders of the employer. The gravity or otherwise of

"insubordination" cannot be placed in a straight-jacket formula.

Insubordination may be a grave misconduct in a disciplined

force like a para-military organization. However, the appellant

is a lowly paid employee of Class IV cadre of the Corporation

and we cannot countenance the view of the appellate Authority

that the proved misconduct of insubordination is grave, much

less grave enough to warrant dismissal.

IV. We note from the show-cause notice issued by the Appellate

Authority under Clause 9 of the Discipline & Appeal Procedure

and the order of punishment of dismissal impugned that the

past service record is not considered. Clause 6-B of the

Discipline & Appeal Procedure reads thus :-

"Without prejudice to the provisions of any law for the time being in force, any employee who is found guilty of any of the acts of misconduct laid down in Schedule "A" of this

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procedure may be liable to any one of the punishment indicated in clause 7(a) & (b). While awarding the punishment due regard will be given to the gravity of misconduct and also his past record."

The punitive order clearly militates against the mandate of

Clause 6-B.

17] For the reasons spelt out supra, we hold that the order of

punishment is so shockingly disproportionate to the proved

misconduct as to shock judicial conscience. Mr. Wankhede would

urge that having reached such a conclusion, the matter may be

remitted to the Competent Authority or the Appellate Authority to

decide upon the quantum of punishment. Relying on the

observations of the Supreme Court in Lucknow Kshetriya Gramin

Bank (Now Allahabad, Uttar Pradesh Gramin Bank) and

another .vs. Rajendra Singh reported in (2013) 12 SCC 372. Mr.

Wankhede would contend that the constitutional Court would not

ordinarily assume the role of the Disciplinary Authority and decide the

quantum of punishment. Mr. Wankhede would further urge that this

Court may not even suggest any punishment since such a course is

held by the Supreme Court to be imposing fetters on the discretionary

power of the employer.

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18] We have given anxious consideration to the said

submission. We are again mindful of the legal position that the Writ

Court should ordinarily remit the issue to the Disciplinary Authority for

imposing an appropriate punishment. However, the Supreme Court

has in a number of decisions, inter alia the three Judges judgment in

B.C. Chaturvedi .vs. Union of India & others reported in (1995) 6

SCC 749 held that the Writ Court would be justified in deciding the

quantum of punishment in an anxiety to shorten the length of the

litigation. The relevant observation in B.C. Chaturvedi's case read

thus :-

"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 substitute its own conclusion on penalty and impose some other penalty. It 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

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litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof".

19] The incident took place in 1991 and the appellant is out of

employment since 20.2.2008. In this view of the matter, we do not

feel it appropriate to remit the issue of quantum of punishment to the

Disciplinary Authority.

20] The appellant, a Class-IV employee is out of employment

since 20.2.2008. The proven misconduct is of a minor and technical

nature and the order of punishment is unconscionable. The period of

unemployment for the last more than 9 years must have taken its toll

on the appellant and his family. We are, therefore, of the opinion that

the order of stoppage of increments as imposed by the Competent

Authority is an adequate punishment, particularly in the light of the

fact that the appellant has suffered enough for a minor and technical

misconduct.

21] We, therefore, quash and set aside the judgment and

order of the Industrial Court dated 16.2.2008 and the judgment and

order of the learned Single Judge dated 25.4.2008. The appellant

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shall be reinstated with continuity of service within four weeks. The

appellant shall be paid 50% of the back wages from the date of

dismissal to the date of reinstatement. The judgment of the Labour

Court dated 7.4.1998 shall stand suitably modified.

22] With these directions, the appeal is allowed. No order as

to costs.

                     JUDGE                                            JUDGE.
     J.