T. S. Kolhatkar vs Air India & Ors
2017 Latest Caselaw 8702 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORGINAL CIVIL JURISDICTION

                        WRIT PETITION NO.2537 OF 2003

 T.S.Kolhatkar                                  }
 Omkar Apartments
 S.L.Raheja Hospital Marg                       }
 New Police Lane, Mahim (W)
 Mumbai-400 016.                                 }   ..       Petitioner

                   vs
 1. Air India                                    }
     Santacruz (East)
     Mumbai-400 029.
                                                 }
 2. M.R.Sannakki
     General Manager (PC & F)
     Air India, Santacruz (East)                 }
     Mumbai-400 029.

 3.  Ms Deepa Kanchan
      Dy.General Manager (Engg)                  }
      Air India
      Santacruz (East)
      Mumbai-400 029.                            }

 4.  Mr.Babu Peter                               }
      Director of Engineering
      Air India,Santacruz (East)
      Mumbai-400 029.
                                                  }
 5.  Mr.Ambokar
      Dy.General Manager (MPD)
      Air India                                     }
      Santacruz (East)
      Mumbai-400 029.                                       .. Respondents




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 Mr.Arshad Shaikh I/b Sanjay Udeshi & Co for Petitioner

 Mr.S.K.Talsania Sr.Advocate with Ms.Kavita Anchan
 I/b M.V.Kini & Co for Respondents

                  CORAM : A.A.SAYED AND 
                             M.S.KARNIK, JJ
 JUDGMENT RESERVED ON:       28th July 2017   
 JUDGMENT PRONOUNCED ON: 15 November, 2017

 JUDGMENT (Per M.S.Karnik, J)

1. The challenge in this Petition filed by the Petitioner

under Article 226 of the Constitution of India is to an order

dated 23.12.2002 awarding punishment of suspension for two

days on loss of pay and wages. By this order, it is directed that

the Petitioner would be paid subsistence allowance at 50% of

his basic pay plus D.A.allowance for the first six months and

thereafter at 75% and that the Petitioner will not be entitled to

any pay over and above this during the said suspension period.

2. The facts of the case in a nutshell are as under :

The Petitioner was served with the charge sheet

along with suspension memo alleging non-performance of duties

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and that the Petitioner was indulging in sexual harassment of

women. The charge sheet is dated 20.2.2001. It would be

material to re-produce the relevant portion of the chargesheet

in respect of the charges levelled against the Petitioner.

" You are attached to the PPD Main Office to discharge dues and responsibilities assigned to you effectively and are required to sit and work in the open half of PPD Main Office. However, it is reported that you are not carrying out your duties and responsibilites efficiently and instead indulge in sexual harassment against women employees by making sarcastic and abusing remarks whenever they pass though the PPD Office Main hall. At around 14.30 hours on 13th Feb 2001 when Ms Deepa Kanchan, Dy.DM (PPD) was passing through the PPD Main office, you made some abusing remarks at her in the presence of officials and staff who were present at that relevant ti,e. When she objected to this, you started shouting and absuing her. Since your behaviour was not in keeping with the decency, she telephoned Mr.Ajit Manvatkar, Asst.Officer (Security) for help and requested him to send a Security officer so that the nuisance from you is stopped. Mr.Kishore Prabhu, Sr.Security Inspector immediately came to PPD Office when you had stopped shouting at her.

It is further reported by Ms.Deepa that about two months back, when she was standing in front of Mr.B.D.Adsul, Sr.Manager Admin, you had made threatening and assaulting action towards her and Mr.Sunita Panchal, when you were warned by Ms.Deepa not to repeat such an action in future. It is further reported that you are also in the habit of making sarcastic remarks against ladies staff/lady executive, shouting at top of your voice, yawning loudly and making peculiar noices, start murmuring and uttering whenever lady staff pass by you. When this was objected you had replied rudely to

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lady staff stating that "Everyone has the right to make any non-sense statement and nobody can question him." This has resulted in disturbing the peaceful office environment in the PPD office and output from the staff members had adversely aaffeced due to your sexual harassment to them."

3. The Petitioner by his letter dated 26.2.2001 denied

the charges. According to him the same are concocted and

fabricated. By a letter dated 2.3.2001 the Petitioner was

informed that the said charges were based on a complaint dated

13.2.2001 made by one Mrs.Deepa Kanchan to the Deputy

General Manager (Engineering). The Petitioner submitted his

reply on 14.3.2001. By a communication dated 2.4.2001 the

Petitioner was informed that his reply to the charge sheet was

not satisfactory and hence Mr.P.Lakra General Manager,

Material Management Department was appointed as an Enquiry

Officer to conduct an inquiry against the Petitioner. The

Petitioner had reservations about Mr.Lakra conducting the

enquiry.

4. By a communication dated 30.5.2001 the second

respondent decided to appoint Mr.A.A.Ambokar Deputy General

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Manager, Materials Management Department as an Enquiry

Officer with a view to give the Petitioner a fair opportunity of

representing his case. The inquiry proceeded but the Petitioner

had some reservations in the manner in which the inquiry

proceedings were progressing which he expressed by a

communication dated 30.10.2001.

5. Mr.Ambokar the Enquiry Officer submitted a report

dated 5.11.2002. The parties have relied upon a compilation of

the documents which are produced on behalf of the respondents

in relation to the record of the inquiry.

6. We have gone through the Inquiry Officer's report.

Based on a written complaint received from Ms.Deepa Kanchan

that the petitioner passed abusive remarks against a lady staff,

the Enquiry Officer recorded the evidence of Ms.Deepa Kanchan,

Mr.B.D.Adsul Senior General Manager (Administration),

Mrs.D'Silva Senior Progress Chaser that of Mr.M.J.George

Dy.General Manager (PPD),Mrs.Sunita Panchal Peon PPD,

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Mrs.Mahalakshmi Senior Steno PPD of Mr.R.S.Deshmukh Senior

Technical Officer.

7. Mrs.Kanchan in her evidence deposed about

murmuring and peculiar noises which the Petitioner made as

well as remarks the Petitioner passed against her. She in her

evidence has also narrated the allegations that the Petitioner

was showing beating action at her and making peculiar noises,

removing his shoes and showing shoes at her.Evidence of

Ms.Deepa Kanchan is corroborated by Mr.B.D.Adsul and other

witnesses. Based on the evidence, the Enquiry Officer has

recorded the following findings:

"From the evidences of the complainant/witnesses Mrs. Deepa Kanchan and other Management witnesses like Mr.B.D.Adsul, Mrs.D'Silva, Mrs.Mahalakshmi and Mr.Deshmukh their examination and cross-examination, it is established that Mr.Kolhatkar was in altercation with Ms Deepa Kanchan. He had shouted loudly. Hence, assistance of Security was called for. Mr. Kolhatkar has uttered the works "Kya nakhra karati hai" at Ms Deepa Kanchan which has been deposed by all the witnesses except Mr.George. He was in the habit of yawning loudly, making peculiar noises, murmuring. He was making mockery to other staff. He has also made a beating action at Mrs.Deepa Kanchan and Mrs.Sunita Panchal by foot-ruler. He has also insulted the modesty of woman by passing bad remarks on Ms.Deepa Kanchan. Mrs Panchal has also deposed that Mr.Kolhatkar used to stare at her sarees and sandals by bending down and used to tease her. Once he showed a bundle

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of notes saying "Come we will go for an outing in autorickshaw.

In view of the above, the following charges levelled against Mr Kolhatkar stand established."

8. Learned counsel for the Petitioner submitted that

the charges levelled against the petitioner are vague and

therefore, he was not able to effectively defend the same. In his

submission, remarks made to a woman even if sarcastic do not

constitute sexual harassment. In his submissions, neither in the

charge sheet nor in the alleged complaint it is stated as to what

constitutes peculiar noises and how a murmur (which is a low

indistinct sound as per dictionary meaning) can be disturbing or

can be considered to be sexual harassment. The learned counsel

inviting our attention to the evidence recorded during the

course of the inquiry contended that the evidence on record is

not sufficient to prove the charges of misconduct levelled

against the Petitioner.

9. Learned counsel for the Petitioner submitted that

upon perusal of the evidence following can be noticed :-

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a) All the witnesses were subordinate to the complainant;

b) The complaint letter was signed by the signatories as per the descending order of their rank;

c) The alleged oral complaints made by the other witnesses to the complainant differs substantially from the version given by the complainant herself;

d) That not a single person has given any complaint in writing inspite of stating that I have created an atmosphere that was intolerable ;

e) The witneses are not sure as to the positioning of the various persons at the time of the alleged incident and have given clearly contradictory replies;

f) Every single witness has given evasive replies;

g) That during the evidence of each subsequent witness the case is sought to be improved upon based on the cross examination of the previous witness.

10. Learned counsel has also submitted that

Regulation 63 A of the Air India Employees' Service Regulations

is illegal, arbitrary and ultra vires of the Constitution of India. In

his submission, clause 63 A (1) (ii) has the effect of enlarging

the penalties set out in clause 62. According to him, the

respondent cannot, impose any penalty other than those set out

in clause 62. According to him, the petitoner has been imposed

minor penalty of suspension for 2 days on loss of pay and

allowances. The maximum penalty awardable is suspension on

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loss of pay and allowances not exceeding ten days. The

Petitioner during the pendency of the enquiry was under

suspension from 20.2.2001 till the date of imposition of the

penalty i.e. 23.12.2002 for almost a period of 22 months. In

the said period, he received 50% of his basic pay plus dearness

allowances and other compensatory allowance for first six

months and thereafter 75% of his basic pay and allowances.

The loss of pay therefore of 50% for the first six months and

25% for the subsequent period amounts to 16 months of

suspension without wages.

11. In the submission of the learned counsel the

imposition of minor penalty itself indicates that he should not

have been suspended for such a prolonged period and

therefore, suspension pending inquiry is illegal. The learned

counsel submitted that the Petitioner having undergone

suspension for such a long time, there was no occasion for the

respondents to again place him under suspension for two days

over and above what he has already undergone. According to

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the learned counsel, the Petitioner has suffered 16 months of

suspension pending enquiry which is much more than the

punishment of two days awarded.

12. Learned senior counsel for the respondents on the

other hand pointed out that the inquiry was conducted after

complying with the principles of natural justice. In his

submission, evidence has been recorded and the Petitioner has

been given adequate and ample opportunity to cross-examine

witnesses. Based on the evidence on record, the Enquiry Officer

has come to a finding that the charges of misconduct levelled

against the Petitioner stands proved. The charges levelled

against the Petitioner are very serious. The Petitioner has been

punished with suspension of two days which is proportionate to

the charges proved. In his submission the Petitioner is let of

lightly, though the charges proved are serious.

13. In the submission of the learned senior counsel

Regulation 63 of the Air India Employees' Service Regulations

cannot be said to be arbitrary, illegal or violative of the

constitutional provisions in any manner. In his submission,

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clause 63 (A) (1) (ii) does not have the effect of enlarging the

penalties set out in clause 62.

14. The learned senior counsel relies upon the decision

of the Apex Court in the case of BALVANTRAI RATILAL PATEL

VS STATE OF MAHARASHTRA AIR 1968 SUPREME COURT

800 to contend that if there is no express term relating to

payment during such suspension or if there is no statutory

provision in any Enactment or Rule, the employee is entitled to

full remuneration for the period of his interim suspension. On

the other hand, if there is a term in this respect in the contract

of employment or if there is a provision in the statute or the

rules framed thereunder providing for the scale of payment

during suspension, the payment will be made in accordance

therewith. This principle applies with equal force in a case

where the government is an employer and a public servant is an

employee.

15. He also relied the Apex Court judgment in the case

of STATE OF ORISSA through its Principal secretary, Home

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Department vs BIMAL KUMAR MOHANTY (1994) 4 Supreme

Court Cases 126 which reiterates the view taken in

BALVANTRAI RATILAL PATEL SUPRA.

16. In his submission, the suspension pending an

inquiry cannot be inter-linked to the punishment imposed after

completion of the inquiry. The learned senior counsel for the

respondents submits that there is voluminuous evidence on

record and after considering the report of the Enquiry Officer

the punishment has been imposed.

17. We have considered the submissions made by the

learned counsel appearing for the parties. The learned

counsels invited our attention to the relevant portions of the

evidence recorded during the course of the inquiry. We find

that the inquiry has been conducted in accordance with the

principles of natural justice and the Petitioner has been given an

adequate opportunity to defend his case and cross-examine the

witnesses. The Enquiry Officer has come to a conclusion based

on evidence on record that the charges levelled against the

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Petitioner are proved. It is not possible for us in exercise of our

Extra-Ordinary Jurisdiction under Article 226 of the

Constitution of India to re-appreciate the evidence on record

and arrive at our own independent conclusion. After going

through the inquiry proceedings, we are satisfied that the

findings arrived at by the Inquiry Officer are based on evidence

and cannot be said to be perverse. We also do not agree with

the learned counsel for the Petitioner that the charges levelled

against the Petitioner are vague. In fact, we find that the

charges are specific and having correctly understood the

charges, the Petitioner has proceeded to participate in the

inquiry and cross-examined the witnesses. The Enquiry Officer

recorded the findings of fact and a minor punishment of

suspension of two days of loss of pay and allowances is

awarded. We do not find any reason to interfere with the

impugned order awarding minor punishment.

18. Now, let us examine the contention of the Petitioner

as regards challenge to Regulation 62, 63 (A) (1) (ii) of the Air

India Employees Service Regulations. It would be material to

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reproduce the said Regulations :

62. PENALTIES:

The following penalties may for good and sufficient

reason and as herein after provided be imposed on an employee

namely:-

(a) MINOR PENALTIES:

a) Censure;

b) to a lower stage in the time scale;

c) withholding of increments with or without cumulative effect;

d) suspension on loss of pay & allowances not exceeding 10 days;

e) recovery from pay or such other amount as may be due to him towards the whole or part of any pecuniary loss caused to the company by the employees' negligence, default or any breach of any regulations or orders ;

f') withdrawal of passage benefits or/and Medical benefits in full or part for the period specified;

(Emphasis supplied)

63 (A).TREATMENT OF THE PERIOD OF SUSPENSION :

1) When the employee under suspension is reinstated, the

Competent Authority may grant him the following pay and

allowances for the period of suspension:

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(i) If the employee is exonerated and not awarded any of the penalties mentioned in Regulation 62, the full pay and allowances which he would have been entitled, if he had not been suspended, less the subsistence allowance already paid to him; and

(ii) if otherwise, he will not be entitled to any additional payment over and above the subsistence allowance already paid to him for the period of suspension.

(2) In cases falling under sub-clause (i) of Clause (1) of Regulation 63 (A) the period of absence from duty shall be treated as period spent on duty. In case of faling under sub-clause (ii) of Clause (1) of Regulation 63 (A) shall not be treated as period spent on duty."

64.SUBSISTENCE ALLOWANCE:

1) An employee under suspension shall be entitled to draw subsistence allowance equal to 50% of his basic salary, provided the Disciplinary Authority is satisfied that the employee is not engaged in any other employment or business or profession or vocation. In addition, he shall be entitled to Dearness Allowance/Foreign Allowance as admissible on susbsistence allowance and any other compensatory allowance excluding Productivity Allowance as well as Performance Linked Incentive (PLI) and other flight related allowance that may be specified in this behalf in the order of suspension which he was in receipt of on the date of suspension.

2) Where the period of suspension exceeds six months, the Authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of first six months as follows :

(i) The amount of subsistence allowance may be increased to 75% of basic salary and allowance thereon, if in the

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opinion of the Authority, the period of suspension has been prolonged for reason not directly attributable to the employee under suspension;

(ii) the amount of subsistence allowance may be reduced to 25% of basic salary and the allowance thereon if in the opinion of the Authority the period of suspension has been prolonged due to the reasons to be recorded in writing, directly attributable to the employee subordinate to the Competent Authority empowered in this behalf;

a) With effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;

b) With effect from the date of his conviction, if in the event of a conviction, for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed consequent to such conviction.

Regulation 63 (A) (1) (i) is specific.

Regulation 63 (A) (1) (i) contemplates that if an employee is exonerated and not awarded any of the penalties mentioned in Regulation 62, the full pay and allowances which he would have been entitled, if he had not been suspended, less the subsistence allowance already paid to him. Rule 63 (A) (1) (ii) which would be applicable to the Petitioner's case contemplates that he will not be entitled to any additional payment over and above the subsistence allowance already paid to him for the period of suspension.

19. The contention of the learned counsel for the

Petitioner that the same is arbitrary and irrational and violative

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of the constitutional provisions, in our opinion, is unfounded for

the below mentioned reasons.

20. It would be material to quote the observations

made by the Apex Court in the case of BALVANTRAI RATILAL

PATEL Para 4 of the said decision reads thus:

(4) "The general principle therefore is that an employer can can suspend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. If there is no express term relating to payment during such suspension or if there is no statutory or provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension. On the other hand, if there is a term in this respect in the contract of employment or if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension the payment will be made in accordance therewith. This principle applies with equal force in a case where the government is an employer and a public servant is an employee with this qualification that in view of the peculiar structural hierarchy of Government administration, the employer in the case of employment by Government must be held to be the authority which has the power to appoint the public servant concerned. It follows therefore, that the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding which may eventually result in a departmental enquiry against him. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments

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during the period of suspension. On general principles therefore the government like any other employer would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings. This may be called interim suspension The government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit This will be suspension as a penalty. As we have already pointed out, the question as to which amount should be paid to the public servant during the period of interim suspension or suspension as a punishment will depend upon the provisions of the statute or statutory rules made in that connection."

21. A useful reference can also be made in the case of

STATE OF ORISSA VS BIMAL KUMAR MOHANTY (1994) 4

SUPREME COURT CASES 126 which reiterated the view of

BALVANTRAI RATILAL PATEL. We reproduce para 13 of the

said decision as under :

13. " It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and 5 1993 Supp (3) SCC 483: 1994 SCC (L&S) 67: (1993) 25 ATC commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension

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pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge. "

22. Learned counsel for the Petitioner has relied upon

the decision of this Court in the case of MIRAJ TALUKA GIRNI

KAMGAR SANGH VS THE MANAGER SHREE GAJANAN

WEAVING MILLS SANGLI 1991 II CLR 714 to contend that if

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the charge-sheet fails to stand up this test, the rest of the

domestic enquiry is useless and is merely an eye-wash as the

said charges cannot be said to be charge sheet in the eyes of

law.

23. Having regard to the law laid down by the Apex

Court and upon going through the Regulations, we find that the

Regulations clearly contemplate that pending inquiry, an

employee can be placed under suspension. As to how the period

of suspension is to be dealt with in respect of the employee who

is found guilty of misconduct and upon penalty imposed on him,

is dealt with by Regulation 63 (A). The suspension pending an

inquiry is a consequence of initiating departmental proceedings

against the employee concerned. The aspect regarding what

punishment should be imposed by the disciplinary authority

after the Inquiry Officer has submitted his findings is provided

by Regulation 62. Regulation 62 (A) (d) provides "suspension

on loss of pay & allowances not exceeding 10 days." The

imposition of minor penalty of loss of pay cannot be inter-linked

with section 63 (A) which provides for treatment of the period

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of suspension as the same operates in a different and distinct

field. Merely, because a minor penalty of two days suspension

has been imposed as a consequence of proved mis-conduct

cannot affect the treatment of the period of suspension only on

the ground that the employee concerned has remained under

suspension for unduly long period of time which in this case is

16 months. Undoubtedly, the charges levelled against the

Petitioner are serious in nature. Imposition of penalty of

suspension up to a period of 10 days, is one of the minor penalty

contemplated by Regulation 62. It is only in case where an

employee is exonerated and not awarded any of the penalties

mentioned in Regulation 62 that he would be entitled to full pay

and allowances, which he would have been entitled were he not

suspended.

24. In the present case,as the penalty of two days

suspension, which is a minor penalty, has been imposed on the

Petitioner, the respondents are well justified in deciding how the

period of suspension should be treated. It is not the quantum of

punishment imposed but the factum of punishment imposed is

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decisive for treatment of the period of suspension under

Regulation 63 (A).

25. In these circumstances, we do not find that

Regulation 63 (A) (1) (ii) is in any manner arbitrary or

unconstitutional. As noted earlier, the Inquiry Officer has

arrived at a finding of fact based on the evidence on record.It is

not possible for us to re-appreciate the evidence on record in

exercise of our Extra-Ordinary jurisdiction under Article 226 of

the Constitution of India. The view taken by the Enquiry Officer

is based on evidence and the same cannot be said to be perverse

or palpably erroneous. We also do not find the punishment is

disproportionate to the proved misconduct.

26. In this view of the matter, we do not find any merit

in the Petition and the same is accordingly dismissed with no

order as to costs.

 (M.S.KARNIK, J)                                                 (A.A.SAYED J)