Executive Engineer ???A??? Div., ... vs Radhey Lal
2011 Latest Caselaw 4265 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 1st September, 2011

+                         WP(C) NO.1194/2008

EXECUTIVE ENGINEER 'A' DIV., CPWD             ..... Petitioner
                Through: Ms. Archana Gaur, Advocate

                                     Versus

RADHEY LAL                                               ..... Respondent
                          Through:      Ms. Vibha Mahajan Seth, Advocate.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may              Yes
       be allowed to see the judgment?

2.     To be referred to the reporter or not?             Yes

3.     Whether the judgment should be reported            Yes
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The petition impugns the award dated 11th January, 2007 of the

Industrial Adjudicator on remand vide order dated 26th August, 2002 in Civil

Writ No.4266/1993 preferred by the respondent workman impugning the

original Award dated 23rd June, 1992 of the Industrial Adjudicator.

2. The original Award dated 23rd June, 1992 came to be made on the

following reference dated 24th May, 1989:

"Whether the action of the management of CPWD "A" Division, New Delhi in terminating the service of Shri Radhey Lal S/o Late Shri Banwari Lal w.e.f. 16.12.79 is justified? If not, to what relief the workman is entitled?"

3. The Industrial Adjudicator in the original Award dated 23rd June, 1992

found that the services of the petitioner as beldar were terminated due to his

unauthorized absence from duty; that the departmental inquiry conducted by

the petitioner employer before such termination was valid, legal and

complied with principles of natural justice; that the departmental inquiry

conducted by petitioner employer before that there was nothing to suggest

that the Management was vindictive against him or that his services were

terminated in an illegal manner; that the respondent workman had initially

filed Civil Writ Petition No.308/1985 impugning the termination of his

service w.e.f. 16th December, 1979 but which had been dismissed; that the

claim of the respondent workman before the Industrial Adjudicator was that

the punishment meted out to him was harsh; the Industrial Adjudicator held

that since the Writ Petition filed by the petitioner had been dismissed by this

Court, it could not be said that the punishment meted out to the petitioner

was disproportionate.

4. This Court in order dated 26th August, 2002 in CWP.No.4266/1993

preferred by the respondent workman against the original Award aforesaid

found that the CWP No.308/1985 preferred by the respondent workman had

been dismissed since disputed questions of fact had been raised. It was thus

held that the dismissal of that Writ Petition could not prevent the workman

from urging before the Industrial Adjudicator that the punishment meted out

to him was disproportionate to the misconduct. This Court further held that

the Industrial Adjudicator had erroneously not applied itself to the aspect of

the quantum of punishment considering itself bound by the dismissal of

CWP No.308/1985. Accordingly, the matter was remanded to the Industrial

Adjudicator for adjudication only on the question of quantum of punishment.

5. The Industrial Adjudicator has in the Award dated 11 th January, 2007

impugned in this petition observed that the main allegation against the

respondent workman was of remaining unauthorizedly absent from the duty

from April, 1975 to April, 1976; that though remaining absent was a serious

matter but the penalty imposed of dismissal from service was harsh and

disproportionate particularly when the respondent workman claimed that he

could not join the duty due to illness and was thereafter not allowed to join

duty and had filed photocopy of medical certificates. The Industrial

Adjudicator accordingly deemed it appropriate that a lesser punishment is

inflicted on the respondent workman and held that ends of justice would be

met if the penalty of stoppage of two increments only is awarded to the

respondent workman. The Industrial Adjudicator accordingly directed that

the workman be reinstated in service with 20% of backwages from the date

of termination till the date of reinstatement; that two increments from the

last pay drawn at the time of termination be withheld. It was further

clarified that the workman would be reinstated only if had not attained the

age of superannuation and if had attained the age of superannuation, shall

stand superannuated with benefit of pension as per rules with arrears of back

wages at 20%.

6. Notice of the present petition was issued and subject to deposit by the

petitioner of `50,000/- in this Court, the operation of the Award stayed. On

application under Section 17B of the ID Act being preferred by the

respondent workman, vide order dated 6th November, 2009 payment under

Section 17B was directed and which is stated to have been paid.

7. The Writ Petition was dismissed in default on 6th January, 2011. CMs.

No. 7997/2011, 7998/2011 and 7999/2011 have been filed for restoration,

for condonation of 60 days delay in filing the restoration application and 42

days delay in refiling the application.

8. The counsel for the respondent workman has been heard in opposition

to the applications for restoration. For the reasons stated, the delay in filing

and refiling the applications for restoration is condoned and the Writ Petition

is restored to its original position.

10. The counsels have also been heard on the merits of the Writ Petition.

11. Finding that the initial employment of the respondent workman with

the petitioner is of the year 1973, it was enquired whether the respondent

workman has not attained the age of superannuation. It is informed that he

has so attained the age of superannuation in September, 2010.

12. The findings of fact which are not in dispute are that the respondent

workman joined the petitioner as a temporary beldar on 19th April, 1973;

that he was on unauthorized leave of 28 days between August and

September 1973, of 47 days between September and November 1973, of 15

days in November 1973, of 65 days between May and July, 1974, of 80 days

between December, 1974 and February, 1975, of 103 days between July to

October, 1975; that the disciplinary proceedings were initiated against him

on 16th February, 1977 and he was dismissed from service on 26 th

November, 1977; however, the Departmental Appellate Authority set aside

the order of dismissal from service and directed departmental inquiry for

major penalty; it was not as if the respondent workman from 1975 till 1978

was working for the petitioner; while it is the case of the petitioner employer

that he remained unauthorizedly absent, it is the case of the respondent

workman that he was not allowed to join duty; that in the fresh inquiry

proceedings also the respondent workman was held guilty and vide order

dated 7th December, 1983 the Disciplinary Authority dismissed him from

service; the respondent workman raised an industrial dispute but the same

was dismissed for non prosecution on 2nd June, 1984; the application of the

respondent workman for restoration of the industrial dispute was dismissed

on 28th December, 1984; thereafter the respondent workman filed CWP

308/1985 (supra) which was dismissed on 3rd May, 1985; that the respondent

workman after remaining quiet for nearly four years raised the industrial

dispute on which the reference aforesaid came to be made.

13. It is thus found that the respondent workman has barely worked for

the petitioner employer. The effect of the Award under challenge would be

to burden the petitioner employer with the retiral benefits of the respondent

workman, to earn which one has to work for the full length of service. It has

as such been put to the counsel for the respondent workman whether it is not

inequitable to hold the respondent workman to be entitled to pension and

other retiral benefits without having worked and/or having worked for

barely one and a half year. No reply could be given. No reply on the said

aspect can be found in the counter affidavit of the respondent workman also.

14. With the dismissal of CWP 4266/1993 earlier preferred by the

respondent workman, the guilt of the workman of unauthorized absence

stands established. The only question is of proportionality of punishment.

Though the Industrial Adjudicator on remand was conscious of the

possibility of the workman having attained the age of superannuation, he

does not appear to have considered the inequity of burdening an employer

with the liability for retiral benefits of a workman who has barely worked.

As aforesaid it cannot be said that the long time for which the dispute

remained pending is also attributable to the petitioner employer. Rather the

respondent workman is found to be responsible therefor; it is he who first

raised an industrial dispute, failed to prosecute the same, thereafter

unsuccessfully filed a Writ Petition and after keeping quiet for four years

again raised the industrial dispute.

15. The petitioner in this regard relies on Government of India v. George

Philip AIR 2007 SC 705 laying down that the Tribunal or the High Court

exercising jurisdiction under Article 226 of the Constitution does not sit in

appeal against the decision of the disciplinary authority imposing

punishment upon the delinquent employee and the jurisdiction exercised by

the Tribunal or the High Court while exercising the power of judicial review

is limited and they cannot set aside the punishment altogether or impose

some other penalty unless they find that there has been a substantial non-

compliance of the rules of procedure or a gross violation of rules of natural

justice which has caused prejudice to the employee and has resulted in

miscarriage of justice or the punishment is shockingly disproportionate to

the gravamen of the charge. However, the Supreme Court in the judgment

aforesaid was concerned with the Administrative Tribunals Act, 1985. The

ID Act in Section 11A thereof expressly empowers the Industrial

Adjudicator to go into the question of proportionality of punishment. The

judgment aforesaid thus cannot be said to be strictly applicable.

16. Notwithstanding the same, I am still of the opinion that the

punishment which the Industrial Adjudicator has substituted for the

punishment meted out by the Disciplinary Authority, in the facts aforesaid

results in miscarriage of justice. It cannot be lost sight of that the respondent

has not worked at all for the petitioner since 1983 and not regularly since

1975. Even prior thereto he was highly irregular.

17. In the entirety of the aforesaid circumstances, this Court is constrained

to interfere with the Award of the Industrial Adjudicator. It is inconceivable

that the respondent workman has not worked elsewhere in this long span of

time. Though it is felt that no interference was called for in the punishment

meted out by the Disciplinary Authority to the respondent workman but it is

deemed appropriate to nevertheless direct release of the amount of `50,000/-

deposited by the petitioner employer in this Court which was directed to be

kept in fixed deposit and which had a maturity value of `58,010/- as on 19th

March, 2010 together with up-to-date interest accrued thereon to the

respondent workman.

18. The Award dated 11th January, 2007 of the Industrial Adjudicator is

thus set aside/quashed. The punishment of dismissal from service imposed

on the respondent workman is found to be appropriate, with the rider

ofcourse of the respondent workman being entitled to the amount of

`50,000/- deposited by the petitioner in this Court together with interest

thereon. It is further clarified that for the reason of the petition being

allowed, the respondent workman shall not be liable to refund any part of the

amount received under orders in exercise of powers under Section 17B of

the ID Act or for refund of any excess amount over and above the last drawn

wages received under the said order.

19. The petition is disposed of. Costs of litigation have already been paid

to the respondent workman.

RAJIV SAHAI ENDLAW (JUDGE) September 01, 2011 M