Delhi Milk Scheme vs Mahabir Singh
2009 Latest Caselaw 531 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P.(C) NO.17666/2005


%                                         Reserved on : 20.01.2009
                                          Date of Decision: 13.02.2009

DELHI MILK SCHEME                                      .... Petitioner

                      Through None

                                 Versus

MAHABIR SINGH                                          .... Respondent

                      Through None

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

1.    Whether reporters of Local papers may be
      allowed to see the judgment?             NO
2.    To be referred to the reporter or not?  YES
3.    Whether the judgment should be reported in
      the Digest?                             YES


                        JUDGMENT

V.K.SHALI, J.

*

1. The petitioner by virtue of the present writ petition has challenged

the award dated 6th August, 2004 passed by Sh. R.N.Rai, Presiding

Officer, Industrial Tribunal cum Labour Court (hereinafter referred to as

„The Tribunal‟) in ID No. 17/1995 titled as Mahabir Singh Vs. General

Manager, Delhi Milk Scheme.

2. By virtue of the impugned award dated 6th August, 2004, the

Tribunal has set aside the punishment of compulsory retirement which

was imposed by the petitioner/Management on the

respondent/workman after holding a domestic enquiry on the ground

that it was disproportionate to the proved mis-conduct of the

respondent/workman. The ground on which this punishment was set

aside was that the mis-conduct was considered to be trivial and

accordingly the learned Tribunal substituted the said punishment with

a stoppage of two increments with cumulative effect and directed the

reinstatement of the respondent/workman with payment of 25% of back

wages.

3. Briefly stated the facts leading to the filing of the present writ

petition are that on 25th January, 1989, the respondent/workman who

was employed as a mate with the petitioner/Management was given a

charge sheet under Rule 14 of the CCS Rules, 1965 alleging therein

that while being employed on the distribution of milk, he attempted to

pilfer 35 litres of polypack milk in connivance with the other crew

members of the van. The Enquiry Committee was constituted by the

Deputy General Manager in the capacity of disciplinary authority. The

Enquiry Committee conducted the enquiry against the

respondent/workman in accordance with the principles of natural

justice and came to the conclusion that the mis-conduct against the

respondent/workman of trying to pilfer 35 litres of polypack milk was

proved and accordingly he was visited with the punishment of

compulsory retirement.

4. The respondent/workman made a reference to the Central

Government whereupon the Ministry of Labour vide letter dated

20.1.1995 made the following reference for the adjudication of the

learned Tribunal:

" Whether the General Manager, Delhi Milk Scheme is justified in awarding penalty of compulsory retirement to Shri Mahabir Singh, Mate son of Shri Chottey Lal from the services of Delhi Milk Scheme w.e.f. 3.08.1990? If not, what relief the concerned workman is entitled to."

5. The learned Tribunal after upholding the validity of the inquiry

came to the conclusion that the mis-conduct proved against the

respondent/workman was that he had along with 4-5 persons of the

delivery van of the milk, attempted to pilfer 35 ltrs. of polypack. It

further proceeded to observe that if this was achieved then each would

have got to his share about 4-5 liters of milk or so which misconduct in

the opinion of the Ld. Tribunal was trivial in nature and therefore, it did

not warrant the compulsory retirement of the respondent/workman.

The punishment of compulsory retirement was considered to be harsh

and accordingly, it substituted the same, with stoppage of two

increments with cumulative effect. The respondent/workman was also

directed to be reinstated with 25 % back wages along with interest of

6% from the date of publication of the award.

6. The petitioner/Corporation feeling aggrieved by the aforesaid

award of learned Tribunal regarding the substitution of punishment of

compulsory retirement with stoppage of two increments with cumulative

effect has preferred the present writ petition.

7. The main contention of the petitioner/Corporation in the writ

petition has been that once the learned Tribunal had upheld the

fairness and the validity of the enquiry conducted against the

respondent/workman it could not sit as a Court of appeal and convert

the finding of the compulsory retirement to a lesser punishment on the

so called assumption of the misconduct being trivial, by simply trying to

aportion the quantum of milk attempted to be pilfered by the

respondent/workman in connivance with others. It was also contended

that imposition of punishment was the job of the disciplinary authority

and assuming though not admitting the learned Tribunal has been of

the opinion that the punishment was shockingly disproportionate to the

mis-conduct of the respondent/workman then the only option available

to the learned Tribunal was to set aside the punishment imposed on the

respondent/workman and remand the matter back to the disciplinary

authority for consideration and imposition of such other punishment,

which it may deem appropriate under the circumstances.

8. The learned counsel for the respondent/workman raised

preliminary objections with regard to the maintainability of the writ

petition itself as being abuse of the processes of law. It was further

alleged that the petitioner was adopting unfair labour practice and the

principles of natural justice and the CCS (CCA) Rules or FRSR Rules

were violated in conducting the enquiry. So far as the quantum of

punishment is concerned, it was urged that it was justified on the

ground that the learned Tribunal had rightly imposed the punishment

keeping in view the misconduct of the petitioner was trivial in nature.

9. I have considered the respective submissions and perused the

record. So far as the preliminary objections with regard to the validity

of the enquiry proceedings are concerned, no independent writ petition

has been filed by the respondent/workman. Therefore, this Court

cannot go into the question of the plea sought to be urged by the

respondent/workman in the counter affidavit that the enquiry was not

completed in accordance with the principles of natural justice. There is

a clear cut finding by the learned Labour Court that the enquiry which

was conducted against the respondent/workman was fair, impartial

and did not violate any Rule or regulation. If the respondent/workman

was feeling aggrieved by the aforesaid finding, it was open to him to

challenge the same before the Court. Having not been so, it is too late

in the day to contend that the present enquiry was not fair and to allege

that it violated the principles of natural justice.

10. As regards, the other preliminary objections raised by the

respondent/workman with regard to the maintainability of the writ

petition is concerned that is also without any merit as the

respondent/workman has failed to show as to how the writ petition is

not maintainable and how it is resulted in gross abuse of the process of

law. Merely by making an averment which is too vague and without

any material, it cannot be accepted.

11. Therefore, the only question which is to be considered by this

Court is as to whether the learned Tribunal was justified in substituting

the punishment of compulsory retirement with stoppage of two

increments with cumulative effect and further giving a direction

regarding reinstatement of respondent /workman with payment of back

pages to the tune of 25% with 6% interest.

12. The law regarding imposition of punishment as a consequence of

departmental enquiry is very well settled by the Hon‟ble Supreme Court

in Catena of authorities. The consistent view which has been taken by

the Apex Court is that the imposition of punishment is primarily the job

of the disciplinary authority. It has by and large not approved of the

practice of the High Court and more so of the Tribunal, substituting its

own view, so far as the imposition of punishment is concerned. In place

of the view of the disciplinary authority. There is only one contingency

in which the Apex Court has held that the High Court can interfere with

the punishment which is imposed on the delinquent and that is only

when the punishment which has been imposed by the disciplinary

authority is „shockingly dis-appropriate‟ or „excessively harsh‟ or which

„shocks the conscious of the Court‟. Though the terminology used by

the apex Court is different in different cases namely „excessively harsh‟,

„shocking the conscious of the Court‟, „disproportionate to proved

misconduct‟ but the primary purpose of all these terminologies is that

the Court which is considered to be just and reasonable, must come to

form an opinion that the proved mis-conduct of the delinquent did not

warrant such a punishment on the delinquent as has been done by the

disciplinary authority. Reliance in this regard can be placed on Union

of India Vs. B.C.Chaturvedi (1995) 6 SCC 497 wherein it was observed

as under:

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

13. This view has been reiterated in the later decisions in Union of

India v. G.Ganayutham (1997) 7 SCC 463 and Om Kumar v. Union of

India (2001) 2 SCC 386.

14. Simultaneously, there are recent authorities which have also

deprecated the practice of the Court or for that matter Tribunal showing

mis-placed generosity to the delinquent, in converting the punishment

which has been imposed by the disciplinary authority on the delinquent

to a lesser punishment. One of the notable judgments on this regard is

reported in 2007 is Depot Manager, A.P.S.R.T.C. Vs. Raghuda Siva

Sankar Prasad (2007) 1 SCC 222 wherein the Supreme Court has held

that the delinquent employee having admitted his guilt before the officer

and further having deposed before him that he had handed over the

stolen property back and later on praying to the learned Labour Court

to excuse him of the mis-conduct, did not deserve any sympathy. In

the said case, the disciplinary authority had ordered his removal which

was substituted by the High Court to a lesser punishment. The apex

Court restored the punishment of removal by observing that while

imposing the punishment the quantum of money or the value of

property which has been stolen is not that relevant. Once a theft takes

place the employee has lost the confidence of the employer and it would

not be safe for the employer and much less in the interest of

Corporation to continue such an employee in the service. The Court

even went to the extent saying that even the past conduct of the

workman could not be a relevant consideration in the departmental

proceedings. The apex Court also reminded that the High Court in

exercise of its jurisdiction under Article 226 of the Constitution can only

modify the punishment which is imposed, if it is found it „shockingly

disappropriate‟ to the charges proved and certainly not on the ground

and „generosity‟ or „misplaced sympathy‟. The Court even went to the

extent by saying that it was not open to the Industrial Tribunal to

substitute their subjective opinion in place of one arrived at by the

domestic Tribunal namely the disciplinary authority or the Appellate

authority.

15. Keeping in view the aforesaid observations of the apex Court, I

feel that learned Tribunal in the instant case has exceeded its power by

observing that as the quantum of milk which was sought to be pilfered

was only 35 ltrs. and there were 5 or 6 persons which included the

petitioner also and therefore, his misconduct was trivial in nature which

did not deserve that he be visited with such a harsh punishment of

compulsory retirement.

16. This in my view was totally inappropriate and showing misplaced

sympathy with the delinquent on account the Hon‟ble Supreme Court‟s

observation in Raghuda Siva Sankar Prasad‟s case (supra). The

respondent/workman in the instant case was working as an employee

of the petitioner /Corporation which supplies milk through the private

vans to the various booths and private parties and thus it was a

question of trust which was reposed by the petitioner/Corporation in

the respondent/workman which has been completely eroded on

account of his attempt to pilfer the milk in collusion with the other

employees of the van. There was a complete loss of confidence on them

which the petitioner/Corporation could not rely and work with any

further. The Industrial Tribunal/Labour Court has shown complete

misplaced sympathy in protecting such a delinquent workman.

17. For the above-mentioned reasons, I feel that the learned Labour

Court has fallen into grave error in setting aside the punishment

imposed on the delinquent and has exceeded its powers. Accordingly,

the impugned order to the extent of setting aside the punishment which

has been substituted by the learned Tribunal vide order dated 6th

August, 2004 is set aside and the punishment of compulsory retirement

which has been imposed by the disciplinary authority is restored. No

order as to costs.

February 13, 2009                                     V.K.SHALI, J.
RN