H.D. Bhatt vs Union Of India & Others
2011 Latest Caselaw 4907 Del

                               REPORTABLE

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     W.P. (C) No.2709 of 2003

                                      Reserved on: 30th August, 2011
%                              Pronounced on: 30th September, 2011


      H.D. BHATT                                        . . . PETITIONER

                                Through:   Mr. Arvind Kumar Shukla,
                                           Advocate with Ms. Sweta
                                           Rani, Advocate.

                                 VERSUS

      UNION OF INDIA & OTHERS                      . . .RESPONDENTS

                                Through:   Mr. Sachin Datta, Advocate
                                           with Mr. Abhimanyu Kumar,
                                           Advocate.

CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MR. JUSTICE M.L. MEHTA

      1.     Whether Reporters of Local newspapers may be allowed
             to see the Judgment?
      2.     To be referred to the Reporter or not?
      3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.

1.    The         petitioner       was      appointed           as          a

      Salesman/Storekeeper/Accounts        Clerk   in    the   Air       Force

Canteen at Air Force Station, Race Course, New Delhi in

May, 1986 and was working in that position at the relevant

time as well. In 1997, he was elected as President of All

Indian Defence Civilian Canteen Employees Union.

According to him, after assuming this position of President

on behalf of his Union, he has raised many grievances on

various issues with the management of canteen, which was

not liked by the respondents. In April, 1998, the petitioner

was elected as Secretary General of All Indian Defence

Civilian Canteen Employees Union.

2. An ugly incident happened on 28.11.1998 when another

employee, one Ms. Gurvinder Kaur (hereinafter referred to

as „the complainant‟) wanted to send a letter to the

petitioner, which he refused to accept. It seems that as a

result, some quarrel ensued between both of them which

resulted into scuffle and both of them slapped and hit each

other. According to the complainant, she was sexually

harassed. Manager of the canteen summoned Air Force

Police and thereafter the local Police. The petitioner was

taken to the Police Station. According to the petitioner, to

give quietus to the entire controversy and particularly, when

he was threatened to dire consequences, he submitted his

apology. He was assured, at the same time, that no further

action will be taken and this will put to an end to the entire

matter. Police also dropped the case on the complainant

withdrawing her complaint.

3. Two days thereafter, however, the petitioner was called by

Canteen Officer Sqn. Ldr. Raman Kapoor and was asked to

give in writing this the incident. After preliminary facts

findings, the petitioner was served with show cause

notice/Chargesheet dated 03.12.1998 and was also placed

under suspension. In the said Chargesheet, following

charges were leveled against the petitioner:

"On 28 Nov. 98, while working as LDC of Air Force Canteen, New Delhi, while on duty, verbally insulted and physically assaulted Ms. Gurvinder Kaur, LDC of the said canteen in the office premises, thereby publically outraging the modesty and human dignity of a fellow woman employees."

4. The petitioner submitted his reply to the same, inter alia,

contending that the charge was not correct and it was the

complainant who had physically assaulted him and in any

case, the matter had been compromised. He also demanded

certain documents. Inquiry Officer was appointed, who

proceeded with the inquiry and recorded the statement of

the complainant as PW-1. Three more witnesses, viz., Mr.

V.P.S. Bhasin (PW-2), Mr. G.K. Vij (PW-3) and Mr. U.S.

Bajwa (PW-4) were examined. All these witnesses were

examined in the absence of the petitioner, as he did not

appear in the Inquiry on 06.01.1999 and 07.01.1999 when

the statements of these witnesses were examined. Some

more witnesses were examined subsequently. As per the

petitioner during this period, the petitioner kept on

demanding certain documents, which request was negatived

by the Disciplinary Authority time and again. As the

petitioner was not satisfied with the procedure adopted by

the Inquiry Officer, he filed Writ Petition (Civil) No.2417 of

1999, which was dismissed as premature. Thereafter,

inquiry was concluded and as per the Inquiry Officer, chares

stood proved against the petitioner. On the basis thereof,

orders dated 16.06.1999, passed by the Chief Administrative

Officer dismissing the petitioner from his service. The

petitioner filed appeal thereagainst, which was also

dismissed.

5. Thereafter, the petitioner filed W.P.(C) N.3618 of 2000 in

this Court challenging the dismissal order. This petition was

transferred to Central Administrative Tribunal (hereinafter

referred to as „the Tribunal‟) and was assigned as T.A. No.15

of 2002. Vide orders dated 03.06.2002, the Tribunal

dismissed the said T.A. He sought review of the order,

which was also dismissed by the Tribunal on 19.12.2002.

Challenging these orders of the Tribunal, the instant writ

petition is filed.

6. We have stated the facts in brief because of the reason that

in this writ petition, show cause notice was issued on

15.05.2003 limited to the question of proportionality of

punishment awarded to the petitioner and thereafter Rule

D.B. was issued confining to the aforesaid aspect.

Therefore, the only issue pertains to the proportionality of

the punishment of dismissal awarded to the petitioner. For

this reason we have narrated those facts whichled to the

incident and the actual charge levelled against the

petitioner, which would be relevant for deciding the question

of punishment.

7. Learned counsel for the petitioner submitted that the

petitioner was harassed by the management because of his

Union activities, as the management wanted to teach him a

lesson. It was further submitted that the issue was amicably

settled with the complainant, after the petitioner was called

upon to submit his apology and assurance was given that no

further action will be taken. For this reason, even the

complainant withdrew her complaint.

8. Another aspect which is highlighted by the learned counsel

was that the complainant was equally at fault, who had

given severe beating to the petitioner. It was further

pleaded that the petitioner had unblemished record of more

than 12 years right from his appointment since 1986 till

03.12.1998 when the petitioner inflicted with the impugned

punishment. On that basis he argued that the punishment

of dismissal was disproportionate and the petitioner

deserved a lenient treatment.

9. We have gone through the inquiry record including the

statement of the complainant recorded before the Inquiry

Officer from this point of view. No doubt, there has been

scuffles between the two of them, which started when the

complainant wanted to deliver official letter to the petitioner

and the petitioner refused to accept the same and abused

the complainant. It is also a matter of record that on being

abused, it is the complainant who first resorted to the

violence by slapping the petitioner and thereafter it was „free

for the two‟ as both started slapping and hitting each other.

However, what becomes damaging qua the petitioner is that

when he was quarreling and fighting with a female

colleague, he lost the sense of decency. Not only he used

derogatory/insulting languages to the complainant when she

had gone to deliver the letter to him, he trespassed the

limits of decency by resorting to kind of physical violence not

expected from an employee qua his female colleague.

Moreover, it has come in the statement of the complainant

that he held the complainant from the front from below her

shirt collar while the palm of his hand was touching her

breast. It is at this stage, she had slapped the petitioner

few times. This behaviour of the petitioner makes his

misconduct quite serious. Penalty of dismissal, for such an

act of misconduct cannot be treated as disproportionate to

the nature of charge.

10. It is established principle that while sitting in judicial review

over the disciplinary matters, the Courts are not supposed to

act as an appellate authority. The quantum of punishment,

that is to be given to a particular employee is the discretion

of the Disciplinary Authority, which can be gone into by the

Appellate Authority within the Department. Courts are not

supposed to interfere with such a discretion, insofar as

quantum of penalty is concerned. Only in exceptional

circumstances in which it can be interfered with is, when

the Court finds the penalty to be shockingly disproportionate

to the charge. This principle is well ingrained in various

judgments of the Apex Court. Purpose would be served by

referring to few of them.

11. In the case of B.C. Chaturvedi v. Union of India, (1996)

ILLJ 1231(SC), the Apex Court observed as follows:

"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 would 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."

12. This principle of not interfering with the punishment awarded

by the employer unless the same is found to be shocking

disproportionate to the proved charges has been consistently

followed in series of decisions by the Apex Court such as,

U.P. State Road Transport Corporation and Ors. V.

Mahesh Kumar Mishra and Ors., (2000) ILLJ 111 (SC),

Regional Manager, UPSRTC, Etawah and Ors. v. Hoti

Lal and Anr., (2003) IILLJ 267 (SC), Chairman and

Managing Director, United Commercial Bank and Ors.

v. P.C. Kakkar, (2003) IILLJ 181 (SC), Union of India v.

P. Chandra Mouli, (2003) 10 SCC 196, Govt. of India and

Anr. v. George Philip, AIR 2007 SCW 379.

13. To be fair to the petitioner, we may also record that there is

a slight shift in the aforesaid approach of the Supreme Court

in couple of judgments. In the case of V.S.P. v Goparaji

Sri Prabhakara Hari Babu, (2008) IILLJ 645 (SC), it was

observed that Court ordinarily ought not to disturb the

penalty where procedural requirements have been complied

with by the departmental authority but the principle of

proportionality can be invoked in appropriate cases.

14. In the case of State of Gujarat v. Gajanand M. Dalwadi,

(2008) 1 SCC 716, the Apex Court observed that the

Tribunal is not an appellate authority, its jurisdiction was

also limited. It could not have ordinarily interfered with the

quantum of punishment unless it was held to be wholly

disproportionate to the imputation of charges.

15. In the case of State of M.P. v. Hazarilal, (2008) IILJ 715

(SC), the Apex Court, observing that the legal parameters of

judicial review have undergone a change and that

Wednesbury principle of unreasonableness has been

replaced by doctrine of proportionality, interfered with the

punishment by the Government of its employee upon finding

that the same was disproportionate to the conduct which led

to the conviction of the employee.

16. We may also place on record that in a recent judgment in

the case of State Bank of Bikaner & Jaipur v. Nemi

Chand Nalwaya, (2011) 4 SCC 584, the Supreme Court

again applied the principle of proportionality.

17. Even when we apply the Wednesbury principle of

unreasonableness, we are of the opinion that it is not a case

where the disciplinary authority/appellate authority exercises

the discretion unreasonably having regard to the gravity of

the charge.

18. Having regard to the seriousness of the charge which

amounts to outraging the modesty of a woman, we do not

find any excruciating circumstances which are strong enough

to shock the conscience. The punishment imposed upon the

petitioner commensurate with the gravity of the charge does

not call for any interference. As a result, this writ petition is

dismissed.

No costs.

(A.K. SIKRI) JUDGE

(M.L. MEHTA) JUDGE SEPTEMBER 30, 2011/pmc