Union Of India & Anr. vs Lakhoo Ram & Anr.
2009 Latest Caselaw 639 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P.(C) No.17148/2005

%                                Dated: 25.02.2009

UNION OF INDIA & ANR.                                       .... Petitioners

                         Through: Mr. U.L. Watwani with Ms. Kiran
                                  Singh, Advocates

                                        Versus

LAKHOO RAM & ANR.                                           .... Respondents

                         Through: Mr. Varun Prasad, Advocate.

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


V. K. SHALI, J. (Oral)

1. The petitioner by virtue of the present petition has prayed for

setting aside the award dated 30th June, 2004 passed in ID

No.192/1997 in case titled Shri Lakhoo Ram, Plumber Vs.

Superintending Engineer, CPWD. By virtue of the aforesaid award, the

learned Labour Court has set aside the order of punishment of

dismissal imposed on the respondent/workman on the ground that the

same is arbitrary and discriminatory and the Labour Court has

substituted the same with punishment of stoppage of 3 increments

without cumulative effect as was imposed in the case of another co-

delinquent, Mantoori.

2. Briefly stated, the facts leading to the present writ petition are

that on 26th November, 1997, the following industrial dispute was

referred to the Industrial Tribunal-cum-Labour Court for adjudication :

"Whether the action of the management of Superintending Engineer, Delhi Central Circle 9, CPWD, New Delhi in terminating the services of Shri Lakhoo Ram, is legal and justified? If not, what relief the workman is entitled to?"

3. The respondent/workman, Lakhoo Ram, was allegedly working

as Plumber with the petitioner/management from 28th August, 1986,

and his services were terminated w.e.f. 30th August, 1995 after conduct

of a domestic inquiry against him. The allegations made against him

were that on 13th May, 1989 at about 3.00 p.m., he along with co-

delinquent, Ganga Prasad, Mason and one Mantoori, Chowkidar

allegedly gave beating to Ram Chander, Junior Engineer while posted in

the same Division. A show cause notice for proposed inquiry was

issued to the respondents/workmen on 19.9.1989 and articles of

charges were also given to them. Pursuant to this, an Inquiry Officer

was appointed. The Inquiry Officer after conducting inquiry gave a

report that the misconduct of the respondent/workman was duly

established and accordingly, the report was sent to the Disciplinary

Authority. The inquiry report was dated 30th June, 1994 and it may be

pertinent to observe here that the Inquiry Officer, Mahesh Chandra,

Superintending Engineer had observed that the respondent/workman,

Lakhoo Ram along with Mr. Ganga Prasad, Mason and Mantoori,

Chowkidar had beaten Ram Chandra, Junior Engineer severely and the

same has been established. On the basis of this inquiry report, the

services of the respondent/workman were dismissed.

4. The learned Labour Court has set aside the punishment of

dismissal from service on the ground that the punishment which was

imposed on the respondent/workman was arbitrary and discriminatory

inasmuch as the other co-delinquent, namely one Ganga Prasad,

Mason was exonerated completely by the petitioner/management and

so far as the other co-delinquent, Mantoori is concerned, in his case

punishment of stoppage of two increments without cumulative effect

was imposed and that too without holding inquiry. The learned Labour

Court came to the conclusion that the punishment of termination

which was imposed on the respondent/workman was accordingly

discriminatory inasmuch as all of them were guilty of the same

misconduct.

5. I have heard the learned counsel for the parties. It has been

contended by the learned counsel for the petitioner that the Labour

Court has grossly fallen into an error by setting aside the order of

termination and substituting its punishment of stoppage of 3

increments without cumulative effect. It has been contended by the

learned counsel that this finding of the learned Labour Court is in total

derogation with the law laid down by the Supreme Court in the case

titled M.P. Electricity Board Vs. Jagdish Chandra Sharma (2005) 3

SCC 401. In this case, the Apex Court held that the punishment of

dismissal on the workman was not shockingly disproportionate as the

charge proved against the delinquent was that he had hit his superior

officer. It was observed by the Court that obedience to authority is in

work place is not slavery. It is a sine qua non for the efficient

functioning of the organization. The facts of the case are

distinguishable from the facts of the present case. In the case which is

cited, the delinquent was alone thereby meaning that it was a case of a

standalone delinquent while as in the present case, there is ample

evidence and so is the case of the department that there were three

associates of which the respondent was only one. Then in such a

situation there has to be some amount of parity in the punishment

which is imposed. As against this, one is completely exonerated,

second is visited with a minor punishment of stoppage of increment and

the third, the present petitioner is dismissed.

6. As against this, the respondent has contended that the learned

Labour Court has rightly set aside the punishment of

termination/dismissal on the ground of discrimination because there

are catena of authorities by the Supreme Court that in case the

allegations of misconduct against more than one co-delinquents are of

the same nature, there has to be some amount of parity of punishment

imposed on them. Reliance in this regard is placed on the following

authorities :

Man Singh Vs. State of Haryana & Ors. 2008(7) SCALE, Tata Engineering & Locomotive Co. Ltd. (2001) 10 SCC 530, S.K. Bhattacharya Vs. State Industrial Court, M.P. Indore & Ors. 1996 LAB. I. C. 834, M/s Cooperative Store Ltd. Vs. Usha Kumar 1997 LAB. I. C.

833 and Akhilesh Kumar Singh Vs. State of Jharkhand & Ors. 2007(14) SCALE.

7. I have carefully considered the submissions made by the

respective sides. I have also gone through the record. There is no

dispute about the fact that so far as the respondent/workman is

concerned, he was alleged to have misconducted himself along with two

other co-delinquents, namely Ganga Prasad and Mantoori. It is also not

in dispute that the allegation against all of them were the same.

Though notice of proposed inquiry was issued against all the three

delinquents, including the respondent/workman in the instant case,

but curiously enough, so far as Ganga Prasad, Mason is concerned, no

action seems to have been taken against him. It has been stated by the

learned counsel for the respondent that Ganga Prasad was completely

exonerated by the petitioner/management. As regards the Mantoori, he

had filed reply to the show cause notice proposing to hold inquiry

against him and on the basis of his reply itself, he was visited with a

minor punishment of stoppage of two increments without cumulative

effect. So far as the respondent/workman, Lakhoo Ram is concerned,

against him the inquiry was conducted and he was found guilty of

having misconducted himself. The said inquiry report was accepted by

the petitioner/management. Thereafter, the Disciplinary Authority

imposed the punishment of removal from service of the

respondent/workman which was assailed by him by the aforesaid

reference.

8. The learned Labour Court has rightly come to the conclusion that

if there are more than one co-accused held guilty of similar or same

misconduct, there has to be some amount of parity in the proposed

punishment which was imposed on all the delinquents. While as in the

instant case there is a complete variation of punishment imposed on

the three co-delinquents. One Ganga Prasad has been completely

exonerated and so far as the other co-delinquent, Mantoori is

concerned, he has been visited with a minor punishment of stoppage of

two increments while as the respondent/workman in the instant case

has been visited with the major punishment of dismissal which is

totally discriminatory apart from being excessively harsh for the proved

misconduct against him.

9. The Apex Court has repeatedly held that the imposition of

punishment is primarily the job of the Disciplinary Authority and in

normal circumstances even if the Tribunal or the Court comes to a

finding that the punishment imposed on a delinquent in a given case is

excessively harsh, disproportionate to the proved misconduct or is the

one which shocks the conscience of the Court, it may after setting aside

the said punishment remand back the matter to the Tribunal or to the

Disciplinary Authority for the imposition of punishment afresh. But at

the same time, the Court has also observed that if the facts of the case

are such which warrant substitution of punishment by the Court itself,

it can do so in peculiar facts and circumstances of the case such

circumstances. 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."

10. In the light of the aforesaid legal position, I am of the opinion that

this is a fit case where punishment was rightly substituted by the

learned Labour Court by setting aside the punishment of dismissal from

service and substituting the same with punishment of stoppage of 3

increments which is almost at par with the punishment with which the

other co-accused has been given. I therefore find no infirmity with the

award of the learned Labour Court. Accordingly, the writ petition is

dismissed.

No order as to costs.

FEBRUARY 25, 2009                                 V.K. SHALI, J.

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