Life Insurance Corporation Of ... vs Shri Sandeep Gupta
2009 Latest Caselaw 1840 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                   Writ Petition (Civil) No.782/2006

                                    Date of Decision : 04.05.2009

LIFE INSURANCE CORPORATION OF INDIA ......Petitioner
                         Through : Ms.Indra Sawhney
                         with Mr.Parikshir Paul,
                         Advocates.


                               Versus

SHRI SANDEEP GUPTA                             ...... Respondent
                                    Through : Mr.Inderjit Singh,
                                    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 in the instant writ petition has challenged

the award dated 15.6.2005 passed by the Industrial Tribunal

cum Labour Court-II in ID No. 191/1997 titled Sh.Sandeep

Gupta Vs. The Divisional Manager, LIC of India.

2. By virtue of the present award, the learned Industrial

Tribunal has although upheld the legality and the fairness of the

enquiry and reduced the punishment of stepping down five

increments w.e.f. 30.1.1995 to withholding of two increments for

a period of two years. This reduction in punishment has been

challenged on the ground that such reduction was neither within

the powers of the learned Tribunal nor is the same based on any

cogent reason.

3. Briefly stated the facts of the case are that the respondent

/workman was charge sheeted on 12.2.1987 for having willfully

and fraudulently altered the records and thereby made wrong

and excess payments to certain agents amounting to Rs.2,110.40

paise. The second charge against the respondent/workman was

that the respondent /workman had made certain alterations and

unauthorized and wrongful entries in the earning records of the

agents with a view of preparation and settlement of bonus,

commission to agents of the Corporation and thirdly, that he was

working as a Telephone Operator, P&T in the Delhi w.e.f.

24.11.1981 which fact was suppressed by him while he was

offered appointment in LIC.

4. On the basis of the aforesaid charges, it was held against

the respondent/workman stating that he failed to maintain

absolute integrity and devotion to the duty and failed to serve the

Corporation honestly and faithfully, acted in the manner

detrimental to the interest of the Corporation and prejudicial to

the good conduct and thereby committed breach of regulations

21 and 24 read with regulation 39(1) of the LIC (Staff)

Regulations, 1960. The respondent/workman denied the

charges which necessitated the holding of an enquiry with regard

to the proof of charges. It was held by the Inquiry Officer that

charge no.1 was proved in respect of one agent while as charge

no.2 was also proved but with regard to charge No.3, a finding in

favour of the respondent /workman was given.

5. The Disciplinary Authority namely the petitioner after

considering the report of the Inquiry Officer imposed punishment

on the respondent/workman which was bringing him down by

seven steps in the pay scale which he was getting. This was

reduced by the Chairman of the petitioner/Corporation to five

steps which was challenged before the learned Industrial

Tribunal culminating into adjudication by the aforesaid

impugned award.

6. The main contention of the learned counsel for the

petitioner is that although the learned Tribunal has specifically

observed that the question of challenge to the fairness of the

enquiry was given up by the respondent /workman but while

deciding the reference, the learned Tribunal has exceeded its

jurisdiction by substituting the punishment which was imposed

by the Disciplinary authority with a punishment of withholding

of two increments for a period of two years by observing that the

respondent/workman was guilty of minor negligence and the

quantum of money which was involved was just Rs.2,110/-. It

was vehemently urged that firstly the learned Tribunal has

exceeded its jurisdiction of substituting its own views on the

question of punishment as it was not the case of the respondent

/workman before the learned Tribunal and secondly even if it is

assumed that such a punishment needed to be set aside, the

proper course of procedure which the learned Tribunal ought to

have followed was to remand the matter back to the Disciplinary

authority to consider the question of imposition of punishment

afresh.

7. The third submission which was made by the learned

counsel for the petitioner was that even if it is assumed that the

Tribunal was well within its power to substitute the punishment

imposed by the Disciplinary authority by the punishment of

withholding of two increments with cumulative effect, there is no

cogent reason given by the learned Tribunal holding that the

punishment which was imposed on the respondent/workman

was grossly disproportionate so as to shock the conscious of the

learned Tribunal.

8. Per contra, the learned counsel for the

respondent/workman has contended that the learned Tribunal

has given a contradictory finding with regard to the fairness of

the enquiry because despite the fact that at one place the learned

Tribunal has observed that the respondent/workman has given

up the plea of challenge to the fairness of the enquiry yet in the

later portion of the impugned award, the learned Tribunal has

observed that the enquiry has been vitiated and at another place,

it has been observed that the enquiry is not 'perfectly fair' and

that is the ground which persuaded the learned Tribunal to

reduce the punishment which has been imposed on the

respondent /workman.

9. In addition to this, it was contended by the learned counsel

that the money involved in the entire transaction was also very

meager and therefore, the learned Tribunal was well within its

power to reduce the punishment keeping in view the totality of

circumstances.

10. I have carefully considered the submission made by the

learned counsel for the parties and gone through the records.

11. The law regarding the proportionality of punishment has

been fairly crystallized in catena of judgments of the Apex Court.

Broad principles which have emerged from these authorities can

be put as under:

(i) The imposition of punishment on the delinquent employee is

essentially a job to be performed by the Disciplinary Authority.

The punishment which is imposed on the delinquent employee

must be the one which is prescribed by the conduct rules under

which the conduct of the delinquent employee is governed.

(ii) that the learned Tribunal of the Courts will not ordinarily

interfere with the discretion of the Disciplinary Authority in

imposing the punishment on the delinquent employee in this

regard unless the same is shockingly disproportionate to the

proved misconduct or shocks the conscious of the Court or that

it is excessive or arbitrary. Though the terminology which has

been used by the Apex Court in different judgments for

interfering with the punishment imposed by the Disciplinary

Authority varies from case to case but essentially the substratum

of all these judgments is that the punishment which is imposed

on the delinquent should shock the conscious of a reasonable

and judicial mind.

(iii) While considering the imposition of punishment on the

delinquent especially in matters where there is question of

defalcation of accounts, embezzlement of Government funds etc.

The quantum of funds, which may be subject matter of such

misconduct may not be relevant for reduction of punishment as

it is a question of trust which the employer losses qua such an

employee. Interfering with the punishment on the ground that

the quantum of money of theft or embezzlement is a paltry sum

has been deprecated by the Apex Court as showing mis-placed

sympathy with the delinquent.

(iv) The last but not the least while setting aside the punishment

which the Court considers to be shockingly disproportionate the

Courts should as a matter of course remand the matter back to

the Disciplinary Authority for considering the imposition of

punishment on the delinquent afresh rather than imposing a

substituted punishment itself in place of the discretion of the

Disciplinary Authority but this is with one exception is that

where the Court feels that there will be a irreparable or

considerable loss of time or there are special circumstances

which the Court may in its discretion find fit the imposition of

punishment by the Court itself. It may do so but this would be

only as a matter of exception.

12. Reliance in this regard is placed on the following

authorities :-

U.P.State Road Transport Corporation Dehradun Vs. Suresh Pal AIR 2006 SC 3227,

M/s Amrit Vanaspati Co. Ltd. Vs. Khem Chand & Anr. AIR 2006 SC 2739, Anand Regional Coop. Oil Seedsgrowrs' Union Ltd. Vs. Shaileshkumar Harshadbhai Shah 2006(6) SCC 548

13. Now coming back to the facts of the case, the respondent

/workman himself given up the challenge to the fairness of the

enquiry having done so, it was totally inappropriate and

unjustified on the part of the learned Tribunal to have

commented on holding the enquiry by saying that the enquiry

was not fair or that it was not perfectly fair or that user of the

term with the enquiries vitiated. This seems to be inconsistent

observation of the learned Tribunal made inadvertently. If the

learned Tribunal was of the view that the enquiry was vitiated or

it was not perfectly fair, the Tribunal was well within its right to

have set aside the enquiry itself. But the law does countenance

the situation where the learned Tribunal upheld the validity of

the enquiry and yet tinkers with the punishment which has been

imposed on the delinquent more so when in the entire statement

of claim. This is not the case of the respondent /workman that

he is challenging the proposal of the punishment imposed on

him. In addition to this, this Court finds with the reasoning for

reduction of punishment from stepping down of five increments

to withholding of two increments for a period of two years on the

ground that the amount being involved as mere Rs.2,000/- or so

is in direct violation of the pursuance of the Apex Court in case

titled UP SRTC Vs. Ram Kishan Arora 2007 (4) SCC 627 where

the Apex Court has held that the quantum of punishment is to

be seen in the light of seriousness of the charge. The amount of

money embezzled, defalcated should not make the difference in

the imposition of punishment because what is matter is the loss

of trust and not the loss of money. The reduction of punishment

in such a case would be showing mis-placed sympathy to the

delinquent rather than criminal behavior of the delinquent

employee.

14. The arguments of the learned counsel for the respondent is

that such a reduction of punishment is justified on account of

the doubt introduced by the learned Tribunal cannot be expected

because it is not the respondent /workman who has challenged

the impugned award. If the respondent/workman was aggrieved

by the finding of upholding the fairness of enquiry, he was well

within its right to challenge the impugned award not having been

done so he cannot be permitted to urge that the enquiry itself is

bad and therefore, the punishment which has been imposed on

the respondent/workman is justified. This argument is having

inherent contradiction inasmuch as if the enquiry itself is not fair

then the respondent/workman cannot be visited with any

punishment at all rather than a reduced punishment.

15. Therefore, this submission of the learned counsel for the

respondent does not have any merit.

16. For the reasons mentioned above, I am of the considered

opinion that the learned Tribunal has grossly exceeded its

jurisdiction by substituting the punishment of stepping down of

five increments with withholding of two increments for a period of

two years which cannot be sustained in the eyes of law.

Accordingly, the impugned award dated 15.6.2005 passed by the

Industrial Tribunal cum Labour Court-II in ID No. 191/1997 to

the extent of substitution of punishment in place of punishment

imposed on the respondent/workman is set aside and the

punishment which has been imposed by the Disciplinary

Authority is revived.

17. With these directions, the writ petition is allowed.

No order as to costs.

CM No.687/2006(stay)

No separate order is required in the aforesaid application as

the same has become infructuous on account of main matter

having been decided.

V.K. SHALI, J.

MAY 04, 2009 RN