Hari Om vs Delhi Transport Corporation
2009 Latest Caselaw 1609 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                 Writ Petition (Civil) No. 16404/2006

                                     Date of Decision : 23.04.2009

Hari Om                                             ......Petitioner
                           Through: Mr. Arvind Kr. Gupta, Advocate


                                Versus

Delhi Transport Corporation               ...... Respondent
                      Through : Mr. Amit Mehra, Advocate

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                     YES
2.    To be referred to the Reporter or not ?          YES
3.    Whether the judgment should be reported
      in the Digest ?                                  YES

V.K. SHALI, J. (Oral)

1. The petitioner has challenged the award dated 4th August, 2006

passed by the Fast Track Court-XXI, Karkardooma, Delhi in ID No.

313/06/97 in case titled Shri Hari Om Vs. Delhi Transport

Corporation. By virtue of the aforesaid award, the learned Labour

Court has not found any illegality committed by the respondent/DTC

in conducting the domestic inquiry against the petitioner for his

alleged misconduct nor the punishment of removal imposed on the

petitioner has been considered to be shockingly disproportionate so as

to substituted by any other punishment. Accordingly, the learned

Labour Court held that the punishment did not warrant any

interference keeping in view the gravity of the proved misconduct.

2. The petitioner feeling aggrieved by the aforesaid award has

challenged the same in the present writ petition.

3. After completion of the pleadings, I have heard the learned

counsel for the petitioner who has challenged the only quantum of

punishment which has been imposed on the petitioner on the ground

of proportionality.

4. It has been contended by the learned counsel for the petitioner

that keeping in view the past conduct of the petitioner that he was not

involved in any misconduct and had an unblemished service record,

accordingly, the imposition of punishment of removal from service was

grossly disproportionate. It was contended by the learned counsel for

the petitioner that the punishment of removal should be substituted

with a lesser punishment. The learned counsel for the petitioner had

placed reliance in support of his contention on the judgment in case

titled Mahindra and Mahindra Ltd. Vs. N. B. Narawade 2005 3

SCC 134 to urge that the Hon‟ble Supreme Court has made a

reference that the past conduct of the workman may be persuade the

Court to reduce the punishment.

5. The learned counsel for the respondent has vehemently

contested the proposition advanced by the learned counsel for the

petitioner that merely on account of the fact that the past conduct of

the delinquent in a given case is good does not reduce the gravity of

the offence or the misconduct which has been proved against him. It

could not be a ground for imposition of a lesser punishment then the

punishment which has been found appropriate by the disciplinary

authority. For this purpose, the learned counsel for the respondent

also placed reliance on Mahindra and Mahindra Ltd. Vs. N. B.

Narawade 2005 3 SCC 134 as well as on case titled Bharat Heavy

Electricals Ltd. Vs. M. Chandrasekhar Reddy & Ors (2005) 2 SCC

481.

6. I have considered the submissions of the respective sides

carefully and gone through the record before dealing with the

submission raised by the respective sides. It would be pertinent here

to give brief facts of the case. The petitioner was served with a charge

sheet dated 1st July, 1986 wherein allegations were made against the

petitioner which was as under:

"That on 01.07.1986 at about 11.30 hrs, when you asked from Sh. Abdul Latif, A/foreman about struck of your name from the defect register who had shown inability for the same. You used abusive language and assaulted Sh. Abdul Latif, A/Foreman and torn the official record in the presence of other workshop staff.

Your above act tantamount to misconduct within the meaning of para 19(g) & (m) of the standing orders governing to the conduct of D.T.C. employees."

7. The petitioner denied the allegations as fabricated, vague and

alleged that there was a conspiracy to victimize him on account of the

internal politics of the Corporation. The respondent/DTC appointed

one Shri L.K. Batra as Inquiry Officer. The Inquiry Officer recorded

the evidence and conducted the inquiry; give a report that the

misconduct of the petitioner in using filthy abusive language and

assaulted Abdul Lathif A/Foremen and torn the official record in the

presence of the workshop staff is proved.

8. On the basis of the said report of the Inquiry Officer, the

petitioner was visited with the punishment of removal from service.

The petitioner challenged the said imposition of punishment before the

learned Labour Court where an issue was framed as to whether the

domestic inquiry was conducted in accordance with law and principles

of natural justice which was decided against the petitioner. The next

question which arose for consideration of the learned Labour Court

was as to whether the punishment which has been imposed on the

petitioner is grossly disproportionate. The learned Labour Court while

dealing with the said issue referred in case titled State Bank of

Patiala and Others Vs. S. K. Sharma 1996-II CLR 29 SC and

Christian Medical College Hospital Employees Union and Anr. Vs.

Christian Medical College Vellore Association and Ors. (1987) 4

SCC 691 and came to a holding that the punishment of removal which

was imposed on the petitioner keeping in view the proved misconduct

was not grossly disproportionate or shockingly disproportionate, and

therefore, did not interfere with the same. It is in this background

that the submissions have been made before this Court for interfering

with the punishment.

9. The law regarding proportionality of punishment and the scope

of judicial review is very well settled by now. The fundamentals of

these principles of judicial review are that:

(a) that imposition of punishment on the basis of the proved

misconduct is essentially the job of the disciplinary authority. The

Courts as a matter of course ought not to be interfere with the

quantum of punishment imposed on the delinquent for the proved

misconduct unless and until the punishment which has been imposed

on the delinquent on account of the proved misconduct is „shockingly

disproportionately‟ or „grossly disproportionate‟ or „shocks the

conscious of the Court‟.

(b) The various terms which has been used by the Apex Court

in different judgments thereby referring essentially are to the factum

that while considering the scope of judicial review of punishment

imposed at the delinquent, there must be something abhorrent to the

judicial mind keeping in view the proved misconduct.

(c) Even in cases where the Court has come to a conclusion

that the punishment which is imposed on the delinquent in a given

case is grossly disproportionate to his proved misconduct, normally

the matter must be remanded back to the disciplinary authority after

setting aside the punishment so as to enable the disciplinary authority

to impose the punishment afresh. In a very exceptional and rare case

where the Court feels that sending the case back to the disciplinary

authority is not warranted in facts of the case or is likely to result in

some irreparable loss, or delay, then in such a matter as an exception,

the Court itself may substitute the punishment for the one which has

been imposed by the disciplinary authority.

10. Coming back to the facts of the present case, the learned Labour

Court in exercise of its power under Section 11A of the Industrial

Disputes Act, 1947 has not only upheld the fairness and the

impartially of the Inquiry Officer but has also judicially considered and

examined the proportionality of punishment of removal which has

been imposed on the petitioner for the proved misconduct. The

proved misconduct which admittedly in this case was not only the use

of abusive language against his superiors but also assaulted Abdul

Latif, co-employee and tearing the official record. This was something

very serious in as much as the imposition of punishment other than

the one which was done by the disciplinary authority in the instant

case would impinging on the overall maintenance of discipline and

decorum of the organization.

11. The argument which has been made by the learned counsel for

the petitioner is that the past conduct of the petitioner has been very

good, and therefore, because of this one incident he should not have

been visited with the extreme penalty of removal. No doubt, in

Mahindra and Mahindra (supra) the past conduct has been taken note

of but even that case also the delinquent who was guilty of using

abusive filthy language against his superior officers, the punishment

of dismissal was not held to be disproportionate. Therefore, the

Mahindra and Mahindra case (supra) which has been relied upon by

the petitioner instead of supporting his case is in fact supporting the

respondent case of the respondent. In other case also the Hon‟ble

Supreme Court has echoed the same sentiments that the past conduct

may not be always relevant as a mitigating factor of punishment. The

totality of the circumstances have to be seen. An misplaced sympathy

may mar the discipline of the organisation.

12. Keeping in view the aforesaid facts that the petitioner was guilty

of using filthy abusive language, assaulted superiors and torn of

official record, I feel that was an act of gross misconduct impinging on

overall discipline decorum of the organization and if visited with the

punishment other than removal or dismissal will give impetus to other

with similar proclivities to act in the same manner, and therefore, the

learned Labour Court has very rightly rejected the plea of the

petitioner to interfere in the same.

13. I do not find any perversity, illegality or any reason to interfere

in the quantum of punishment which has been imposed on the

petitioner, and accordingly, the writ petition is dismissed.

V.K. SHALI, J.

APRIL 23, 2009 KP