Gujarat High Court
Keshavbhai Juthabhai Jethwa vs Tourism Officer, Gujarat Tourism ... on 18 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20708 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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KESHAVBHAI JUTHABHAI JETHWA
Versus
TOURISM OFFICER, GUJARAT TOURISM CORPORATION LTD &
ORS.
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Appearance:
MR BJ TRIVEDI(921) for the Petitioner(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Petitioner(s) No. 1
MR KUNAN B NAIK(3210) for the Respondent(s) No. 1,2
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 14/08/2024
ORAL JUDGMENT
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1. Present petition is filed by the petitioner - workman under
Articles 226 and 227 of the Constitution of India for the following
prayers.
"[a] to allow this petition with costs and issue a
writ of mandamus / certiorari or any other writ,
direction or order in the nature of writ, as may be
deemed to be appropriate quashing and setting
aside the said Award and to grant the relief[s]
sought for in the said Reference;
[b] to dispose of the present petition
expeditiously, pending admission, hearing and
final disposal of this petition;
and
[c] to grant such further and other reliefs, as may
be deemed to be just and proper."
2. Facts of the present case are that the petitioner was
appointed in the Corporation by order dated 26.01.1980 and was
regularized as a sweeper w.e.f. 01.07.1981. That the petitioner
was terminated from the service in the year 1983, for which he
has preferred the Reference before the Labor Court, Rajkot, and
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the Labour Court has held to be 240 days' employment and
quashed and set aside the impugned order of termination and
the petitioner was reinstated in service and accordingly the
petitioner was working as a sweeper. On 10.04.2003, the
petitioner was again illegally terminated from the service and
from 26.01.1980 to 10.04.2003, he had completed 23 years of
continuous service. That for the absent period from 1988 to 1992
and 1993 to 1995 and from 07.04.2001 to 10.04.2001, he has
proved this fact before the Labour Court by submitting
documentary evidence. That the departmental inquiry has been
conducted and he was terminated from the service and,
therefore he had preferred the Reference before the Labour
Court.
3. Heard Mr.Brijesh Trivedi, learned counsel appearing for the
petitioner and Mr. Kunan Naik, learned counsel appearing for the
respondents No.1 and 2 at length.
4. Mr.Brijesh Trivedi, learned counsel appearing for the
petitioner submitted the same facts which are narrated in the
memo of petition. He has submitted that the Labour Court has
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passed the impugned award through oversight and has not
considered the fact based on which the inquiry was initiated
against the workman is being jeopardized as for earlier
unauthorized leave appropriate punishment was passed for
which Reference No.1601 of 1990 was preferred and the Labour
Court quashed the order of punishment vide order dated
04.03.1992 and published in the gazette on 29.04.1992 and
directed to reinstate the workman in service. He has submitted
that again initiating proceedings for subsequent absent cannot
be used as a base and, therefore, the impugned action of the
respondent - Corporation is illegal, unjust and erroneous. He has
submitted that relying upon the said subsequent action, the
order of punishment of removing the petitioner from the service
passed by the Inquiry Officer, which came to be confirmed by the
Appellate Authority and also confirmed by the Labour Court is
unjust and illegal. He has also submitted that once earlier
absenteeism was regularized by the department and the award
passed by the Labour Court whereby the petitioner was ordered
to be reinstated, the same cannot be used for subsequent absent
and for initiation of the departmental proceedings. He has
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submitted that on the basis of the charge-sheet, the Inquiry
Officer has submitted the report and relying upon such report the
removal order came to be passed which is unjust and illegal and
the order of removal was confirmed by the Labour Court and the
same is also against the settled principles of law. He has
submitted that the delay of more than seven years caused in
preferring Reference, which is also explained in the memo of
Reference, but such facts has not been considered by the Labour
Court in its true and proper spirit and, therefore, the findings
recorded by the Labour Court qua delay in approaching the
Labour Court is erroneous and against the principles of law. He
has submitted that considering the charge levelled against the
petitioner, punishment imposed upon the petitioner is
disproportionate and, therefore, the same deserves to be
quashed. Mr.Trivedi, learned counsel has submitted that the
petitioner waived his right with regard to legality of the inquiry
but so far as the findings recorded by the Inquiry Officer are
concerned, the petitioner has challenged the same before the
concerned authority and, therefore, the Labour Court has
exceeded jurisdiction which is not vested with it while dealing
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with the said aspect and recording the findings on the basis of
the same. It is submitted by Mr.Trivedi, learned counsel that
even otherwise, considering the fact that since 1991, the
petitioner was working as Class IV being sweeper with the
Corporation and during his career except absenteeism, there was
no other allegation with regard to the service career and,
therefore, considering the length of service and the punishment
imposed upon by the Inquiry Officer is very harsh and
disproportionate and, therefore, the same deserves to be
quashed and set aside. In the alternatively, Mr.Trivedi, learned
counsel has submitted that after considering the inquiry report,
the respondent - Corporation ought to have considered the case
sympathetically instead of passing the order of removal and
Corporation ought to have considered the case of the petitioner
as voluntary retirement so he can earn his retiral dues like
gratuity, provident fund and leave encashment etc. Mr.Trivedi,
learned counsel has, while referring the grounds enumerated in
the memo of petition, submitted that the petition may be allowed
and the impugned award passed by the Labour Court may be
quashed and set aside.
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4.1 In support of his submission, Mr.Trivedi, learned counsel
has relied upon the following decisions.
(1) U P State Electricity Board Vs. Rajesh Kumar, (2003)
12 SCC 548;
(2) Jagdish Singh Vs. Punjab Engineering College and
others, (2009) 7 SCC 301;
(3) Union of India and another Vs. R K Sharma, 2022
LawSuit (SC) 1365;
(4) Automotive Manufacturers Ltd, Rajkot Vs. Nanalal
Panachand Vakharia and another, 2018 GLR 788;
(5) U. P. State Electricity Board Vs. Rajesh Kumar, (2003)
12 SCC 548;
(6) Shahji Vs. Executive Engineer, (2005) 12 SCC 141;
(7) Ajaib Singh Vs. Sirhind Co-op. Marketing - Cum -
Processing Society Ltd, AIR 1999 SC 1351;
(8) Hindustan Antibiotics Ltd Vs. The Workman, AIR 1967
SC 948;
(9) Bombay Gas C. Ltd Vs. Gopal Bhiva, AIR 1964 SC 752;
(10) Town Municipal Council, Athani Vs. Presiding Officer,
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Labour Court, Hubli, 1969 SC 1335;
(11) Sakura Vs. Tanaji, AIR 1985 SC 1279;
(12) Jai Bhagwan Vs. Management of the Ambala Central
Co-operative Bank Ltd., AIR 1984 SC 286;
5. Per contra, Mr.Krunal Naik, learned counsel appearing on
behalf of the respondent - Corporation has referred to and relied
upon the affidavit-in-reply and has objected the petition. He has
submitted that the conduct of the petitioner is not good and he is
in habit of remaining absent from duty and at the first instance
from 1988 to 1992 he was remained absent for more than 1289
days for which the order of termination of his service came to be
passed and the said order was challenged by the petitioner by
filing Reference (LCR) No. 1601 of 1989 before the Labour Court.
5.1 Mr.Naik, learned counsel has submitted that the petitioner
has taken the defence that because of his ill-health he was
remained absent from the service but for the same no sufficient
proof was produced before the authority with regard to his illness
and even with regard to the treatment also. He has submitted
that the petitioner has not put a leave report for his illness and
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the Labour Court has also observed that the petitioner was in
habit of remaining absent from duty and he was not following the
instructions of his superior and disobeying the instruction of his
superior. He has submitted that only on one count the Labour
Court has interfered with the order passed by the Corporation
and without initiation of any departmental inquiry against the
petitioner with regard to the alleged absenteeism and without
giving any opportunity the order of termination was passed and,
therefore, only on that ground, the Labour Court has interfered
with the order and passed the order of reinstatement without
back wages as clearly opined that he is not entitled for such
benefits for the period of absenteeism. He has submitted that
after reinstatement, again the award was passed in 1992 and on
the basis of the award, the petitioner came to be reinstated and,
thereafter from 1992 onward, he remained absent and in the
order dated 10.04.2003, it was mentioned that after
reinstatement in service, the petitioner was again unauthorizedly
absent from 1993 to 1995 without any sanctioning leave and
without there being any report. He has submitted that thereafter,
lastly from 07.04.2001 to 10.04.2001 for a period of four days he
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had asked for leave without pay and, thereafter, he never
reported on the duty and, hence, the charge-sheet came to be
led against him and the charge levelled against him in the
charge-sheet and supplied all the relevant documents. He has
submitted that even the petitioner was given full opportunity
during the inquiry and in the inquiry proceedings, he was
assisted by the friend, but he has accepted before the authority
that he was remained absent because of ill-health and thereafter
he never joined the duty. He has submitted that the petitioner
has admitted before the authority that on the basis of the order
passed by the Labour Court, he was reinstated in service in 1992
and the Inquiry Officer has recorded the findings that so far as
earlier absenteeism from 1988 to 1992 and 1993 to 1995 is
concerned, the inquiry is not relating to that earlier absenteeism,
but it is for 2001 to 2002. He has submitted that the petitioner
again absent from the duty and, therefore, the Inquiry Officer,
after considering the documentary evidence and after giving full
opportunity, the impugned order was passed. He has submitted
that the said order was passed in consonance with the principles
of natural justice and after considering the past history of the
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petitioner and the petitioner is in habit of absenteeism from
service. He has submitted that in earlier Reference, while dealing
with the first reference, the Labour Court has observed that he
was in habit of disobeying the instructions of his superior officer
and not obeying the official instruction of his superior officer. He
has submitted that under such circumstances, after considering
all these facts, the Inquiry Officer has passed the impugned
order of removal which came to be confirmed by the Labour
Court. He has submitted that no any illegality or infirmity or
perversity in the award passed by the Labour Court and,
therefore, no interference is required to be called for in the
present case. Mr.Naik, learned counsel has submitted that the
contention raised by the petitioner with regard to the basic
foundation of initiation of inquiry is concerned, the same itself is
incorrect and erroneous under the facts narrated in the inquiry
report and the order passed by the authority and the same was
rightly dealt with by the Labour Court. So far as the delay aspect
is concerned, Mr.Naik, learned counsel has submitted that the
Labour Court has, after considering the relevant facts, observed
that there was no justifiable reason put for by the petitioner with
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regard to the objection raised by the respondent that the
petitioner approached the Labour Court after a long delay of
seven years and, therefore, the Labour Court has rightly dealt
with the issue of the delay. He has submitted that so far as the
legality of the inquiry and punishment imposed upon by the
Inquiry Officer, whether it is disproportionate or not is concerned,
the Labour Court has rightly dealt with such aspect in paras 13.7,
13.7.1 to 13.7.3 and, therefore, the Labour Court has rightly
decided the Reference against the petitioner. He has submitted
that no any illegality or infirmity in the impugned award passed
by the Labour Court while rejecting the award and confirming the
order of punishment passed by the Inquiry Officer. He has
submitted that the Labour Court has, after considering all these
facts, come to the conclusion that the order passed by the
Inquiry Officer of removal based upon the inquiry report is in
consonance with the settled principles of law and, therefore, the
Labour Court has not committed any error of facts and law in
rejecting the reference which is under challenge in this petition
and, therefore, there is no need to interfere with the impugned
award. He has submitted that the Labour Court has observed in
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both the reference that the workman was habitual in
absenteeism and the decisions relied upon by Mr.Trivedi, learned
counsel are not applicable to the facts of the present case
wherein absenteeism in those cases are not more than 300 days.
He has submitted that in the present case at the first instance,
the workman was remained absent for more than 1289 days,
which came to be regularized and, thereafter, by virtue of the
award passed by the Labour Court, the workman was reinstated
in service in 1992 and again from 1993 to 1995, the workman
was remained absent for 245 days and also absent from
11.04.2001 to 23.09.2002 for almost 18 months. He has
submitted that during the departmental proceedings, the
workman was remained present. However, he was not reported
on duty during that period and he remained absent and,
therefore, considering the conduct of the workman and his past
history that he was habitual in absenteeism, no interference is
required to be called for and the petition being meritless
deserves to be dismissed.
6.2. In support of his submissions, Mr.Naik, learned counsel has
relied upon the following decisions.
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(1) Delhi Transport corporation Vs. Sardar Singh, (2004) 7
SCC 574;
(2) Mahindra and Mahindra Ltd Vs. N. B. Narawadi, (2005)
3 SCC 134;
(3) L & T Komatsu Ltd. Vs. N. Udayakumar, (2008) 1 SCC
224;
(4) Prabhakar Vs. Joint director, Sericulture Department
and another, (2015) 15 SCC 1;
7. This Court has considered the averments made in the
petition, submissions canvassed on behalf of both the parties,
affidavit-in-reply, decisions cited at the Bar and gone through the
impugned award passed by the Labour Court. It appears from the
record that after recording the reasoning and finding by the
Labour Court in the first instance i.e. in the first reference and
thereafter in second reference, the Labour Court has come to the
conclusion that though there was serious case of misconduct but
earlier stage without taking the due procedure and without
initiation of the departmental inquiry, the order of removal was
passed against the workman and, therefore, the Labour Court at
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the first instance interfered with the order of punishment of
removal and ordered to reinstate the workman in service without
back wages. Even after reinstatement on the basis of the order
passed in 1992, again in 1993 to 1995, the workman was
remained absent for 245 days and from 2001 to 2002, he was
remained absent till final hearing of departmental inquiry till
23.09.2022 days till the order of termination came to be passed.
During the departmental inquiry, the workman was present,
however, he was not reported on duty, which suggests that he
was in habit of remaining unauthorizedly absent from the service
and even he is not having recourse his higher up and disobeyed
the official instruction given by his superior officer and,
therefore, under such circumstances, both the Labour Court in
the first reference and in the second reference have not
committed any error of facts and law in passing the impugned
award. It emerges from the record that from 1991 to 1999, the
petitioner was remained absent for a period of 1289 days, which
came to be condoned and was regularized considering the same
as leave without pay, against which the Labour Court has also
not interfered, but only order of termination was quashed and
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directed to reinstate the workman in service without back wages
and without giving any benefits to the petitioner. Even after the
order of reinstatement passed by the Labour Court in 1992 again
he was absent from 1993 to 1995 for more than 245 days and,
thereafter from 2001 to 2002 again he was remained absent for
more than 15 months. It appears from the record that the
workman has no sufficient material and explained for remaining
absent on duty and no any sufficient cause has been explained
for the absent period and, therefore, this type of misconduct on
the part of the workman is required to be viewed seriously and
such kind of misconduct cannot be considered lightly under the
service jurisprudence and it has been considered as serious
misconduct on the part of the concerned employee. In my
opinion the Inquiry Officer has not committed any error during
the departmental inquiry and on the basis of the inquiry report,
the authority, while passing the order of removal, has not
committed any error and after considering such aspects, the
authority has passed the order of removal which is in
consonance with the settled principles of law and under service
jurisprudence. So far as the inquiry is concerned, the petitioner
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has accepted the legality of the inquiry proceedings but
challenged proportionality of punishment and, therefore, I am of
the opinion that the Labour Court has dealt with contentions in
its true and proper spirit while considering the provisions of
Section 11A of the Act and passed the impugned award
confirming the order of removal passed by the authority.
8. At this juncture, it is profitable to refer to and rely upon the
decision in the case of State Bank of India and others Vs. P.
Zadenga reported in 2023 (6) SLR 1 (SC) wherein the Hon'ble
Supreme Court has held and observed in para 29.2 as under:-
"29.2 The nature of proceedings being wholly separate and
distinct, acquittal in criminal proceedings does not entitle
the delinquent employee for any benefit in the latter or
automatic discharge in departmental proceedings."
9. After considering the said decisions, this Court is of the
opinion that on account of delay and latches, the petition
deserves to be dismissed. The decisions relied upon by
Mr.Trivedi, learned counsel are not applicable to the facts of the
present case as the facts of those cases and facts of the present
case are different.
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10. In the case of Prabhakar Vs. Joint Director Sericulture
Department and another reported in (2015) 15 SCC 1, the
Hon'ble Supreme Court has discussed with regard to the
existence of the industrial dispute for this long period and that
long period without any explanation cannot be considered by the
Court. In the present case, the order of termination came to be
passed in the year 2003 after full-fledged departmental inquiry
and, thereafter, almost seven years, Reference was filed before
the concerned Labour Court and, therefore, under such
circumstances, this Court is of the opinion that from 2003, the
relationships between the petitioner and the Corporation as
employee and employer came to an end and there was no
dispute existence till 2010 and, therefore, the Reference was
rightly rejected by the Labour Court and no any illegality and
infirmity found in the impugned award passed by the Labour
Court. So far as the probability of punishment is concerned,
Mr.Trivedi, learned counsel has relied upon the decision wherein
the total period of absenteeism is much less than the present
petitioner. In the present case, at the first instance, the
petitioner remained absent for a period of 1289 days which was
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subsequently regularized considering as leave without pay and
after the order of reinstatement was passed by the Labour Court
at the first instance in 1992 again he remained absent for more
than 245 days till 1995 and again remained absent from 2001 to
2002 and till the final hearing of inquiry of removal came to be
passed during the inquiry, he was not remained present, which
fact was on record and the same was the subsequent charge.
Considering the said aspect, this Court is of the opinion that once
the Inquiry Officer has come to the conclusion that it is gross
absenteeism and gross misconduct and habitual in remaining
absent from his duty without any leave report or without prior
sanction leave, such type of misconduct is not to be considered
as disproportionate and the Labour Court has observed in
connection with the said aspects in the first reference and in the
second reference and, therefore, the present petition deserves to
be dismissed. Considering the principal of proportionality. There
is distinction in sanction leave and leave without pay. The
present petitioner remained on leave / absent from the service
on valid reason, but without any leave report or sanction leave,
such fact cannot be considered as absenteeism but the person
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remains absent without sanctioning leave the same to be
considered as leave without pay and, therefore, treated as leave
without pay is not the same as sanctioned or approved leave and
the same is required to be considered differently as observed by
the Hon'ble Supreme Court in para 12 of the case of Delhi
Transport Corporation Limited Versus Sardar Singh
reported in (2004) 7 SCC 574. The observation of para-12 of
the said decision reads as under:-
"12. The Tribunal proceeded in all these cases on the basis
as if the leave was sanctioned because of the noted leave
without pay. Treating as leave without pay is not same as
sanctioned or approved leave"
11. It is worthwhile to refer to the decision of this Court in the
case of Pradeepkumar Thakur Vs. State Bank of India and
1 other reported in 2024 (2) G.L.H. 149 wherein this Court has
held and observed as under:-
"9. It is worthwhile to refer to the decision of the State
Bank Of India Versus Bela Bagchi reported in (2005) 7 SCC
435, wherein the Hon'ble Supreme Court has held and
observed in para-15 as under:-
"15. A Bank officer is required to exercise higher
standards of honesty and integrity. He deals with money of
the depositors and the customers. Every officer/employee
of the Bank is required to take all possible steps to protect
the interests of the Bank and to discharge his duties with
utmost integrity, honesty, devotion and diligence and to do
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nothing which is unbecoming of a Bank officer. Good
conduct and discipline are inseparable from the functioning
of every officer/employee of the Bank. As was observed by
this Court in Disciplinary Authority-cum-Regional Manager
V/s. Nikunja Bihari Patnaik, it is no defence available to say
that there was no loss or profit in the case, when the
officer/employee acted without authority. The very
discipline of an organization more particularly a Bank is
dependent upon each of its officers and officers acting and
operating within their allotted sphere. Acting beyond one's
authority is by itself a breach of discipline and is a
misconduct. The charges against the employee were not
casual in nature and were serious. That being so, the plea
about absence of loss is also sans substance."
10. It is also worthwhile to refer to the judgment of the
Division Bench of this Court dated 06.01.2014 rendered in
Letters Patent Appeal No.915 of 2013 wherein the Division
Bench has observed in para-7 as under:-
7. It is a settled proposition of law by a catena of
judgments of the Apex Court that the Court cannot usurp
the jurisdiction of disciplinary authority and decide the
quantum of punishment. The principle governing judicial
review of punishment inflicted on the delinquent by the
disciplinary authority can be summed up as under;
(a) When charge(s) of misconduct is proved in an enquiry
the quantum of punishment to be imposed in a particular
case is essentially the domain of the departmental
authorities;
(b) The Courts cannot assume the function of disciplinary
/ departmental authorities and to decide nature of function
the quantum penalty is to be of punishment awarded,
exclusively as within and this the jurisdiction of the
competent authority;
(c) Limited judicial review is available to interfere with
the punishment imposed by the disciplinary authority, only
in cases where such penalty is found to be shocking to the
conscience of the Court;"
11. It is also worthwhile to refer to the decision of this
Court in the case of C S. Amin Vs. Assistant General
Manager SBI, Region III & 2 reported in 2016 LawSuit (Guj)
1916 and Bhikhubhai Kamabhai Dabhi Vs. Surat Municipal
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Corporation and 2 reported in 2017 LawSuit (Guj) 9 where
in this Court has decided similar issue as involved in the
present petition.
12. In the case of C. S. Amin (supra), this Court has held
and observed in paras - 29, 30 and 31 as under:-
"29. I may quote the observations of the Division Bench as
under:- The doctrine of proportionality and Wednesbury
rule evolved in England in Council of Civil Services Union
Vs. Minister for Civil Services (1983) 1 AC 768 and
Associated Provincial Picture Houses Limited Vs.
Wednesbury Corporation - 1948 2 All ER 680 have been
applied by the Courts in India in various decisions. In Union
of India Vs. C.G. Ganayutham - AIR 1997 SC 3387, the
Supreme Court considered the ambit and scope of the
doctrine of proportionality and Wednesbury rule in the light
of various judicial pronouncements and laid down the
following propositions: "
(1) To judge the validity of any administrative order or
statutory discretion normally the Wednesbury test is to be
applied to find out if the decision was illegal or suffered
from procedural improprieties or was one which no sensible
decision-maker could, on the material before him and
within the framework of the law, have arrived at. The Court
would consider whether relevant matters had not been
taken into account or whether irrelevant matters had been
taken into account or whether the action was not bonafide.
The Court would also consider whether the decision was
absurd or perverse. The Court would not however go into
the correctness of the choice made by the administrator
amongst the various alternatives open to him. Nor could
the Court substitute its decision to that of the
administrator. This is the Wednesbury test.
(2) The Court would not interfere with the administrator's
decision unless it was illegal or suffered from procedural
impropriety or was irrational in the sense that it was in
outrageous defiance of logic or moral standards. The
possibility of other tests, including proportionality being
brought into English Administrative Law in future is not
ruled out. These are the CCSU principles.
(3)(a) As per Bugdaycay, Brind and Smith, as long as the
European Human Rights Convention (Contention) is not
incorporated into English Law, the English Courts merely
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exercise a secondary judgement to find out if the decision
maker could have, on the material before him, arrived at
the primary judgment in the manner he has done. (3)(b) If
the Convention is incorporated in England making available
the principle of proportionality, then the English Courts will
render primary judgement on the validity of the
administrative action and find out if the restriction is
disproportionate or excessive or is not based upon a fair
balancing of the fundamental freedom and the need for the
restriction thereupon.
(4)(a) The position in our country in administrative law,
where no fundamental freedoms are involved, is that the
Courts/Tribunals will only play a secondary role while the
primary judgement as to reasonableness will remain with
the executive or administrative authority. The secondary
judgement of the Court is to be based on Wednesbury the
CCSU principles as stated by Lord Greene and Lord Diplock
respectively to find if the executive or administrative
authority has reasonably arrived at his decision as the
primary authority.
(4)(b) Whether in the case of administrative or executive
action affecting fundamental freedoms, the Courts in our
country will apply the principle of 'proportionality' and
assume a primary role, is left open, to be decided in an
appropriate case where such action is alleged to offend
fundamental freedoms."
In Apparel Export Promotion Council Vs. A.K. Chopra -
(1999) 1 SCC 759, the Supreme Court reiterated the
otherwise well settled principles of law on the scope of
judicial review of disciplinary action taken by the employer
and laid down the following propositions:-
"It is a settled position that in departmental proceedings,
the disciplinary authority is the sole judge of facts and in
case an appeal is presented to the appellate authority, the
appellate authority has also the power/and jurisdiction to
re-appreciate the evidence and come to its own conclusion,
on facts, being the sole fact-finding authorities. Once
findings of fact, based on appreciation of evidence are
recorded, the High Court in writ jurisdiction may not
normally interfere with those factual findings unless it finds
that the recorded findings were based either on no
evidence or that the findings were wholly perverse and/or
legally untenable. The adequacy or inadequacy of the
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evidence is not permitted to be canvassed before the High
Court. Since the High Court does not sit as an appellate
authority over the factual findings recorded during
departmental proceedings, while exercising the power of
judicial review, the High Court cannot, normally speaking,
substitute its own conclusion, with regard to the guilt of the
delinquent, for that of the departmental authorities. Even in
so far as imposition of penalty or punishment is concerned,
unless the punishment or penalty imposed by the
disciplinary or the departmental appellate authority, is
either impermissible or such that it shocks the conscience
of the High Court, it should not normally substitute its own
opinion and impose some other punishment or penalty.
Further, it is a well-settled principle that even though
judicial review of administrative action must remain flexible
and its dimension not closed, yet the court, in exercise of
the power of judicial review, is not concerned with the
correctness of the findings of fact on the basis of which the
orders are made so long as those findings are reasonably
supported by evidence and have been arrived at through
proceedings which cannot be faulted with for procedural
illegalities or irregularities which vitiate the process by
which the decision was arrived at. Judicial review, is
directed not against the decision, but is confined to the
examination of the decision-making process.
Judicial review, not being an appeal from a decision, but a
review of the manner in which the decision was arrived at,
the court, while exercising the power of judicial review,
must remain conscious of the fact that if the decision has
been arrived at by the administrative authority after
following the principles established by law and the rules of
natural justice and the individual has received a fair
treatment to meet the case against him, the court cannot
substitute its judgement for that of the administrative
authority on a matter which fell squarely within the sphere
of jurisdiction of that authority."
In Om Kumar Vs. Union of India - AIR 2000 SC 3689, the
Supreme Court traced the history of the principle of
proportionality, referred to the propositions culled out in
Ganayutham's case (supra), noticed the decision of the
House of Lords in R. Vs. Chief Constable of Sussesc ex.p.
International Trader's Ferry Ltd. (1999) 1 All ER 129,
wherein the principles of Wednesbury and proportionality
were almost equated and held that where the decision of
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an administrative authority is attacked being arbitrary, the
principle of secondary review will have to be kept in mind.
Paragraphs 28, 29 66 to 71 of this judgement which
theortises the law on the subject are reproduced below:
"28. By 'proportionality' we mean the question whether,
while regulating exercise of fundamental rights, the
appropriate or least restrictive choice of measures has
been made by the Legislature or the Administrator so as to
achieve the object of the legislation or the purpose of the
administrative order, as the case may be. Under the
principle, the Court will see that the Legislature and the
administrative authority 'maintain a proper balance
between the adverse effects which the legislation or the
administrative order may have on the rights, liberties, or
interests of persons keeping in mind the purpose which
they were intended to serve. The Legislature and the
administrative authority are, however, given an area of
discretion or a range of choices but as to whether the
choice made infringes the rights excessively or not is for
the Court. That is what is meant by proportionality."
"29. The above principle of proportionality has been applied
by the European Court to protect the rights guaranteed
under the European Convention for the Protection of
Human Rights and Fundamental Freedoms, 1950 and in
particular, for considering whether restrictions imposed
were restrictions which were 'necessary' - within Arts.8 to
11 of the said Convention (corresponding to our Art. 19(1)
and to find out whether the restrictions imposed on
fundamental freedoms were more excessive than required.
(Handyside V. UK (1976) 1 EHR p.737) Articles 2 and 5 of
the Convention contain provisions similar to Art. 21 of our
Constitution relating to life and liberty. The European Court
has applied the principle of proportionality also to questions
of discrimination under Art. 14 of the Convention
(corresponding to Art.14 of our Constitution). (See
European Administrative Law by J. Schwaze, 1992. Pp.677-
866)."
"66. It is clear from the above discussion that in India where
administrative action is challenged under Art.14 as being
discriminatory, equals are treated unequally or unequals
are treated equally, the question is for the constitutional
Courts as primary reviewing Courts to consider correctness
of the level of discrimination applied and whether it is
excessive and whether it has a nexus with the objective
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intended to be achieved by the Administrator. Here the
Court deals with the merits of the balancing action of the
Administrator and is, in essence, applying 'proportionality'
and is a primary reviewing authority."
"67. But where, an administrative action is challenged as
'arbitrary' under Art. 14 on the basis of Royappa (as in
cases where punishments in disciplinary cases are
challenged), the question will be whether the
administrative order is 'rational' or 'reasonable' and the test
then is the Wednesbury test. The Courts would then be
confined only to a secondary role and will only have to see
whether the Administrator has done well in his primary role,
whether he has acted illegally or has omitted relevant
factors from consideration or has taken irrelevant factors in
to consideration or whether his view is one which no
reasonable person could have taken. If his action does not
satisfy these rules, it is to be treated as arbitrary. (In G.B.
Mahajan V. Jalgaon Municipal Council (1991) 3 SCC 91 at p.
111 :(AIR 1991 SC 1153 at . 1165), Venkatachaliah, J. (as
he then was) pointed out that 'reasonableness' of the
Administrator under Art. 14 in the context of Administrative
Law has to be judged from the stand point of Wednesbury
rules. In Tata Cellular V. Union of India (1994) 6 SCC 651 at
Pp. 679- 680: (1994 AIR SCW 3344 and at Pp.3369-70 In
Regional Manager U.P. SRTC V. Hoti Lal, (2003) 3 SCC 605,
the Supreme Court outlined the mode to be adopted for
determining whether the punishment imposed by the
disciplinary authority is shockingly disproportionate and
observed as under:: AIR 1996 SC 11); Indian Express
Newspapers Vs. Union of India (1985) 1 SCC 641 at p.691:
(AIR 1986 SC 515 at Pp.542- 43): Supreme Court
Employees' Welfare Association V. Union of India (1989) 4
SCC 187 at p.241 : (AIR 1990 SC 334 at p.368: 1990 Lab IC
324 at p.358) and U.P. Financial Corporation V. GEM CAP
(India) Pvt.Ltd. (1993) 2 SCC 299, at p. 307: (1993 SC 1435
at p.1439), while judging whether the administrative action
is 'arbitrary' under Art.14 (i.e.otherwise than being
discriminatory), this Court has confined itself to a
Wednesbury review always."
"71. Thus, from the above principles and decided cases, it
must be held that where an administrative decision relating
to punishment in disciplinary cases is questioned as
'arbitrary' under Art.14, the Court is confined to
Wednesbury principles as a secondary reviewing authority.
The Court will not apply proportionality as a primary
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reviewing Court because no issue of fundamental freedoms
nor of discrimination under Art.14 applies in such a context.
The Court while reviewing punishment and if it is satisfied
that Wednesbury principles are violated, it has normally to
remit the matter to the Administrator for a fresh decision as
to the quantum of punishment. Only in rate cases where
there has been long delay in the time taken by the
disciplinary proceedings and in the time taken in the
Courts, and (in) such extreme or rate cases can the Court
substitute its own view as to the quantum of punishment."
In Regional Manager U.P. SRTC V. Hoti Lal (2003) 3 SCC
605, the Supreme Court outlined the mode to be adopted
for determining whether the punishment imposed by the
disciplinary authority is shockingly disproportionate and
observed as under:
"The Court or tribunal while dealing with the quantum of
punishment has to record reasons as to why it is felt that
the punishment was not commensurate with the proved
charges. The scope for interference is very limited and
restricted to exceptional cases. In the impugned order of
the High Court no reasons whatsoever have been indicated
as to why the punishment was considered disproportionate.
Failure to give reasons amounts to denial of justice. A mere
statement that it is disproportionate would not suffice. It is
not only the amount involved but the mental set-up, the
type of duty performed and similar relevant circumstances
which go in to the decision-making process while
considering whether the punishment is proportionate or
disproportionate. If the charged employee holds a position
of trust where honesty and integrity are inbuilt
requirements of functioning, it would not be proper to deal
with the matter leniently. Misconduct in such cases has to
be dealt with iron hands. Where the person deals with
public money or is engaged in financial transactions or acts
in a fiduciary capacity, the highest degree of integrity and
trustworthiness is a must and unexceptional." (underlining
is ours)
In Director General, RPF V. Ch. Sai Babu (2003) 4 SCC 331,
the Supreme Court reiterated that the High Court should
ordinarily not interfere with the discretion exercised by the
disciplinary authority in the matter of imposition of
punishment and observed:
"Normally, the punishment imposed by a disciplinary
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authority should not be disturbed by the High Court or a
tribunal except in appropriate cases that too only after
reaching a conclusion that the punishment imposed is
grossly or shockingly disproportionate, after examining all
the relevant factors including the nature of the charges
proved, the past conduct, penalty imposed earlier, the
nature of duties assigned having due regard to their
sensitiveness, exactness expected and discipline required
to be maintained, and the department / establishment in
which the delinquent person concerned works."
30 The above noted decision of this Court gives a clear idea
of the limited scope of judicial review of the discretion
exercised by the employer to impose the particular penalty
on the delinquent employee. The Supreme Court has
repeatedly emphasised that the High Courts cannot
exercise appellate jurisdiction in such matters and
substitute their opinion for the one formed by the
disciplinary authority. It has also been held that the
punishment imposed by the competent authority cannot be
modified/substituted with a lesser penalty unless the Court
is satisfied that the same is grossly or shockingly
disproportionate or is so unreasonable that no person of
reasonable prudence would have imposed such punishment
in the facts and circumstances of the case.
31. For determination of the question whether the
punishment imposed by the disciplinary authority is grossly
or shockingly disproportionate, the Court has to take into
consideration all the relevant factors including the nature of
charges proved, the past conduct of the employee, the
punishment if any imposed earlier, the nature of duties
assigned to the employee having due regard to their
sensitiveness, performance norms if any laid down by the
employer and above all the paramount requirement of
maintaining discipline in the service."
13. In the case of Bhikhubhai Kamabhai Dabhi (supra),
this Court has held and observed in paras - 17, 18 and 21
as under:-
"17. It is now well settled by a plethora of judgments of the
Supreme Court that in exercise of its powers under Articles
226 and 227 of the Constitution of India should not venture
into the reappreciation of evidence or interfere with the
conclusion arrived at by the disciplinary authority in the
inquiry proceedings, if the same are conducted in
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accordance with law or go into the reliability / adequacy of
evidence, or interfere, if there is some legal evidence on
which the findings are based, or correct error of fact
however grave it may be, or go into the proportionality of
punishment unless it shocks the conscience.
18. It is equally well settled that the High Courts in
exercise of its powers under Articles 226 and 227 can only
consider whether the inquiry held by the competent
authority was in accordance with the procedure established
by law, and the principles of natural justice,whether
irrelevant or extraneous consideration and/or exclusion of
admissible or material evidence or admission of
inadmissible evidence being influenced the decision
rendering it vulnerable.
21. In a very recent pronouncement in the case of Union
of India and others v. P. Gunasekaran [2015(2) SCC 610],
the Supreme Court in details has explained the position of
law so far as the scope of interference in the matter
relating to the disciplinary proceedings is concerned. I may
quote the observations made by the Supreme Court from
paras 12 to 20 as under:
"12. Despite the well settled position, it is painfully
disturbing to note that the High Court has acted as an
appellate authority in the disciplinary proceedings, re-
appreciating even the evidence before the enquiry officer.
The finding on Charge No. 1 was accepted by the
disciplinary authority and was also endorsed by the Central
Administrative Tribunal. In disciplinary proceedings, the
High Court is not and cannot act as a second court of first
appeal. The High Court, in exercise of its powers under
Article 226/227 of the Constitution of India, shall not
venture into reappreciation of the evidence. The High Court
can only see whether:
(a). the enquiry is held by a competent authority;
(b). the enquiry is held according to the procedure
prescribed in
that behalf;
(c). there is violation of the principles of natural justice in
conducting the proceedings;
(d). the authorities have disabled themselves from reaching
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a fair conclusion by some considerations extraneous to the
evidence and merits of the case;
(e). the authorities have allowed themselves to be
influenced by irrelevant or extraneous considerations;
(f). the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person could
ever have arrived at such conclusion;
(g). the disciplinary authority had erroneously failed to
admit the admissible and material evidence;
(h). the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
(i). the finding of fact is based on no evidence.
13 Under Article 226/227 of the Constitution of India, the
High Court shall not:
(i). reappreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case
the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which
findings can be based.
(vi). correct the error of fact however grave it may appear
to be;
(vii). go into the proportionality of punishment unless it
shocks its conscience.
14 In one of the earliest decisions in State of Andhra
Pradesh and others v. S. Sree Rama Rao1, many of the
above principles have been discussed and it has been
concluded thus:
"7. .....The High Court is not constituted in a proceeding
under Article 226 of the Constitution a court of appeal over
the decision of the authorities holding a departmental
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enquiry against a public servant: it is concerned to
determine whether the enquiry is held by an authority
competent in that behalf, and according to the procedure
prescribed in that behalf, and whether the rules of natural
justice are not violated. Where there is some evidence,
which the authority entrusted with the duty to hold the
enquiry has accepted and which evidence may reasonably
support the conclusion that the delinquent officer is guilty
of the charge, it is not the function of the High Court in a
petition for a writ under Article 226 to review the evidence
and to arrive at an independent finding on the evidence.
The High Court may undoubtedly interfere where the
departmental authorities have held the proceedings against
the delinquent in a manner inconsistent with the rules of
natural justice or in violation of the statutory rules
prescribing the mode of enquiry or where the authorities
have disabled themselves from reaching a fair decision by
some considerations extraneous to the evidence and the
merits of the case or by allowing themselves to be
influenced by irrelevant considerations or where the
conclusion on the very face of it is so wholly arbitrary and
capricious that no reasonable person could ever have
arrived at that conclusion, or on similar grounds. But the
departmental authorities are, if the enquiry is otherwise
properly held, the sole judges of facts and if there be some
legal evidence on which their findings can be based, the
adequacy or reliability of that evidence is not a matter
which can be permitted to be canvassed before the High
Court in a proceeding for a writ under Article 226 of the
Constitution."
15 In State of Andhra Pradesh and others v. Chitra Venkata
Rao [(1975) 2 SCC 557], the principles have been further
discussed at paragraphs 21 to 24, which read as follows:
"21. The scope of Article 226 in dealing with departmental
inquiries has come up before this Court. Two propositions
were laid down by this Court in State of A.P. v. S. Sree
Rama Rao (AIR 1963 SC 1723). First, there is no warrant for
the view that in considering whether a public officer is
guilty of misconduct charged against him, the rule followed
in criminal trials that an offence is not established unless
proved by evidence beyond reasonable doubt to the
satisfaction of the Court must be applied. If that rule be not
applied by a domestic tribunal of inquiry the High Court in a
petition under Article 226 of the Constitution is not
competent to declare the order of the authorities holding a
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departmental enquiry invalid. The High Court is not a court
of appeal under Article 226 over the decision of the
authorities holding a departmental enquiry against a public
servant. The Court is concerned to determine whether the
enquiry is held by an authority competent in that behalf
and according to the procedure prescribed in that behalf,
and whether the rules of natural justice are not violated.
Second, where there is some evidence which the authority
entrusted with the duty to hold the enquiry has accepted
and which evidence may reasonably support the conclusion
that the delinquent officer is guilty of the charge, it is not
the function of the High Court to review the evidence and
to arrive at an independent finding on the evidence. The
High Court may interfere where the departmental
authorities have held the proceedings against the
delinquent in a manner inconsistent with the rules of
natural justice or in violation of the statutory rules
prescribing the mode of enquiry or where the authorities
have disabled themselves from reaching a fair decision by
some considerations extraneous to the evidence and the
merits of the case or by allowing themselves to be
influenced by irrelevant considerations or where the
conclusion on the very face of it is so wholly arbitrary and
capricious that no reasonable person could ever have
arrived at that conclusion. The departmental authorities
are, if the enquiry is otherwise properly held, the sole
judges of facts and if there is some legal evidence on which
their findings can be based, the adequacy or reliability of
that evidence is not a matter which can be permitted to be
canvassed before the High Court in a proceeding for a writ
under Article 226.
22. Again, this Court in Railway Board, representing the
Union of India, New Delhi v. Niranjan Singh (AIR 1969 SC
966) said that the High Court does not interfere with the
conclusion of the disciplinary authority unless the finding is
not supported by any evidence or it can be said that no
reasonable person could have reached such a finding. In
Niranjan Singh case this Court held that the High Court
exceeded its powers in interfering with the findings of the
disciplinary authority on the charge that the respondent
was instrumental in compelling the shutdown of an air
compressor at about 8.15 a.m. on May 31, 1956. This Court
said that the Enquiry Committee felt that the evidence of
two persons that the respondent led a group of strikers and
compelled them to close down their compressor could not
be accepted at its face value. The General Manager did not
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agree with the Enquiry Committee on that point. The
General Manager accepted the evidence. This Court said
that it was open to the General Manager to do so and he
was not bound by the conclusion reached by the
committee. This Court held that the conclusion reached by
the disciplinary authority should prevail and the High Court
should not have interfered with the conclusion.
23. The jurisdiction to issue a writ of certiorari under Article
226 is a supervisory jurisdiction. The Court exercises it not
as an appellate court. The findings of fact reached by an
inferior court or tribunal as a result of the appreciation of
evidence are not reopened or questioned in writ
proceedings. An error of law which is apparent on the face
of the record can be corrected by a writ, but not an error of
fact, however grave it may appear to be. In regard to a
finding of fact recorded by a tribunal, a writ can be issued if
it is shown that in recording the said finding, the tribunal
had erroneously refused to admit admissible and material
evidence, or had erroneously admitted inadmissible
evidence which has influenced the impugned finding. Again
if a finding of fact is based on no evidence, that would be
regarded as an error of law which can be corrected by a
writ of certiorari. A finding of fact recorded by the Tribunal
cannot be challenged on the ground that the relevant and
material evidence adduced before the Tribunal is
insufficient or inadequate to sustain a finding. The
adequacy or sufficiency of evidence led on a point and the
inference of fact to be drawn from the said finding are
within the exclusive jurisdiction of the Tribunal. See Syed
Yakoob v. K.S. Radhakrishnan (AIR 1964 SC 477).
24. The High Court in the present case assessed the entire
evidence and came to its own conclusion. The High Court
was not justified to do so. Apart from the aspect that the
High Court does not correct a finding of fact on the ground
that the evidence is not sufficient or adequate, the
evidence in the present case which was considered by the
Tribunal cannot be scanned by the High Court to justify the
conclusion that there is no evidence which would justify the
finding of the Tribunal that the respondent did not make
the journey. The Tribunal gave reasons for its conclusions.
It is not possible for the High Court to say that no
reasonable person could have arrived at these conclusions.
The High Court reviewed the evidence, reassessed the
evidence and then rejected the evidence as no evidence.
That is precisely what the High Court in exercising
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jurisdiction to issue a writ of certiorari should not do."
16 These principles have been succinctly summed up by
the living legend and centenarian Justice V. R. Krishna Iyer
in State of Haryana and another v. Rattan Singh [(1977) 2
SCC 491]. To quote the unparalled and inimitable
expressions:
"4. ...... in a domestic enquiry the strict and sophisticated
rules of evidence under the Indian Evidence Act may not
apply. All materials which are logically probative for a
prudent mind are permissible. There is no allergy to
hearsay evidence provided it has reasonable nexus and
credibility. It is true that departmental authorities and
Administrative Tribunals must be careful in evaluating such
material and should not glibly swallow what is strictly
speaking not relevant under the Indian Evidence Act. For
this proposition it is not necessary to cite decisions nor text
books, although we have been taken through case law and
other authorities by counsel on both sides. The essence of a
judicial approach is objectivity, exclusion of extraneous
materials or considerations and observance of rules of
natural justice. Of course, fair play is the basis and if
perversity or arbitrariness, bias or surrender of
independence of judgment vitiate the conclusions reached,
such finding, even though of a domestic tribunal, cannot be
held good. ....."
17 In all the subsequent decisions of this Court up to the
latest in Chennai Water Supply and Sewarage Board v. T. T.
Murali Babu (2014) 4 SCC 108 : (AIR 2014 SC 1141), these
principles have been consistently followed adding
practically nothing more or altering anything.
18 On Article I, the disciplinary authority, while imposing
the punishment of compulsory retirement in the impugned
order dated 28.02.2000, had arrived at the following
findings:
"Article was held as proved by the Inquiry authority after
evaluating the evidence adduced in the case. Under the
circumstances of the case, the evidence relied on viz.,
letter dated 11.12.92 written by Shri P. Gunasekaran,
provides a reasonable nexus to the charge framed against
him and he did not controvert the contents of the said
letter dated 11.12.92 during the time of inquiry. Nor did he
produce any defence witness during the inquiry to support
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his claims including that on 23.11.92 he left the office on
permission. There is nothing to indicate that he was
handicapped in producing his defence witness. ...."
19 The disciplinary authority, on scanning the inquiry report
and having accepted it, after discussing the available and
admissible evidence on the charge, and the Central
Administrative Tribunal having endorsed the view of the
disciplinary authority, it was not at all open to the High
Court to re appreciate the evidence in exercise of its
jurisdiction under Article 226/227 of the Constitution of
India. 20 Equally, it was not open to the High Court, in
exercise of its jurisdiction under Article 226/227 of the
Constitution of India, to go into the proportionality of
punishment so long as the punishment does not shock the
conscience of the court. In the instant case, the disciplinary
authority has come to the conclusion that the respondent
lacked integrity. No doubt, there are no measurable
standards as to what is integrity in service jurisprudence
but certainly there are indicators for such assessment.
Integrity according to Oxford dictionary is "moral
uprightness; honesty". It takes in its sweep, probity,
innocence, trustfulness, openness, sincerity,
blamelessness, immaculacy, rectitude, uprightness,
virtuousness, righteousness, goodness, cleanness, decency,
honour, reputation, nobility, irreproachability, purity,
respectability, genuineness, moral excellence etc. In short,
it depicts sterling character with firm adherence to a code
of moral values."
12. The respondent - Corporation has framed the General
Conditions of Service Rules, which reads as under:-
"General Conditions of Service Rules
Whereas it is necessary to define and lay down the terms
and conditions of services of the employees of the Tourism
Corporation of Gujarat Ltd. and to provide for their
functions, duties, leave and remuneration payable to them
etc. the Board of Directors of the said Corporation in
pursuance of Article of the Articles of Association of the
said Corporation and in exercise of the powers vested in
them, make the following rules, namely:
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TOURISM CORPORATION OF GUJARAT LTD.
General Condition ofService Rules.
PART-I:
GENERAL
1. SHORT TITLE, COMMENCEMENT & APPLICATION:-
(1) These rules may be called "the Tourism Corporation of
Gujarat Ltd. (General Conditions of Service) Rules, 1986
(2) These rules shell come into force with immediate
effect.
(3) Unless otherwise expressly provided, these rules shall
apply to all the employees of the Corporation other than
the following:
(a) The Chairman, Managing Director and other Director,
whose conditions of appointment and services are
prescribed by the Government of Gujarat
(b) Perses on deputation from the Government
(j) 'Governaent Servant' means a person who is a member
of a service of State Government or who holds a post
under the State Government whose services are
temporarily placed on deputation at the disposal of the
Corporation.
(k) 'Managing Director' means the Managing Director of the
Corporation.
(1) 'Secretary' means the Secretary of the Corporation.
(m) 'Schedule' means the Schedule attached to those
Rules.
PART-II
CONDUCT
7. ACT CONSTITUTING MISCONDUCT:-
1. Every employee of the Corporation shall ot all times
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conduct himself soberly and temperately while in office or
Establishment premises or outside and shall sow proper
respect and civility to all concerned and shall use his best
endeavour to maintain and promote good reputation of the
Corporation. He shall not do anythings to undermine
tarnish or damage the good name, reputation and good
will of the Corporation.
2. An employee of the Corporation shall not nave any
private financial dealing with persons, firm, agencies, etc.
having business relating with the Corporation for sale or
purchase of any material, equipment or supply of labour or
ex for any other purpose.
3. The following acts on the part of an employee shall also
be treated as misconduct.
i. Wilful disobedience of an order or in subordination of the
superior.
ii. Theft, fraud, forgery, embezzlement or dishonesty in
connection with the Corporation's property of business.
iii. Non-observance of safety precautions or the rules on
the subject.
iv. Habitual late attendance and wilful or habitual absence
from duty without leave or without sufficient cause.
v. Habitual negligence or neglect of duty malingering or
deliberate slowing down of work and sleeping on duty.
vi. Taking of giving bribes or any illgollen or any illegal
gratification.
vii. Unauthorized communication of official documents or
information and disclosure to any unauthorised person of
information relating to the Corporations.
viii. Possessing of assets disproportionate to the known
source of income.
ix. Habitual indebtedness of insolvency.
x. Unauthorised use of Corporation's land or quarters.
xi. Conviction in any of law for any criminal offence
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involving moral turpitude.
xii. Being under the influence of liquor while on duty.
xiii Improper behaviour towards other employees."
13. The above-mentioned decisions of this Court gives a clear
idea of the limited scope of judicial review of the discretion
exercised by the employer to impose the particular penalty on
the delinquent employee. The Supreme Court has repeatedly
emphasised that the High Courts cannot exercise appellate
jurisdiction in such matters and substitute their opinion for the
one formed by the disciplinary authority. It has been held that
the punishment imposed by the competent authority cannot be
modified / substituted with a lesser penalty unless the Court is
satisfied that the same is grossly or shockingly disproportionate
or is so unreasonable that no person of reasonable prudence
would have imposed such punishment in the facts and
circumstances of the case.
14. On perusal of the inquiry report of the inquiry officer and
the order of the disciplinary authority, I am of the opinion that
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the punishment of dismissal inflicted on the petitioner vis-a-vis
the proven misconduct is not so disproportionate as would shock
the conscience of this Court warranting interference.
15. Considering the totality of facts, I am of opinion that the
authorities have rightly arrived at the conclusion that the
petitioner was guilty of misconduct, which was sufficient to
remove him from the service. This Court finds no reasons to
interfere with the same either.
16. Considering overall facts and circumstances of the case
and the decisions of this Court as well as Hon'ble Supreme Court,
I am of the opinion that the appellate authority has recorded its
findings after perusing and going through the materials on
record and, therefore, both the authorities have not committed
any error in passing the impugned orders and hence, the present
petition is devoid of merits and the same deserves to be
dismissed.
17. For the foregoing reasons, this petition fails and is hereby
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dismissed. Rule is discharged. Interim relief, if any, shall stand
vacated forthwith.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
