Gujarat High Court

The General Manager, Western Railway vs Mangliben Mehrubhai Patel W/O Late Shri ... on 3 January, 2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 11762 of 2019


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MRS. JUSTICE M. K. THAKKER

                      ==========================================================

                                   Approved for Reporting                        Yes             No
                                                                                           No
                      ==========================================================
                               THE GENERAL MANAGER, WESTERN RAILWAY & ORS.
                                                   Versus
                             MANGLIBEN MEHRUBHAI PATEL W/O LATE SHRI MEHRU MOTI
                      ==========================================================
                      Appearance:
                      MS ARCHANA U AMIN(2462) for the Petitioner(s) No. 1,2,3,4
                      ANKIT V MEKVAN(8838) for the Respondent(s) No. 1
                      JAITUNKUMAR N PATEL(8456) for the Respondent(s) No. 1
                      MR K R MISHRA(6312) for the Respondent(s) No. 1
                      PRABHATSINH J PARMAR(7996) for the Respondent(s) No. 1
                      ==========================================================

                        CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                           Date : 03/01/2025

                                                          ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocate Mr.

K.R.Mishra waives service of notice of Rule on behalf of

respondent.

2. This petition is filed under Article 226 and 227 of

Constitution of India challenging the award passed by

the learned C.G.I.T. in reference (C.G.I.T) No.208 of

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2004 dated 30.01.2019 thereby, directions were issued

to treat the punishment of removal from service as

voluntary retirement with all retirement benefits and to

give family pension to Smt. Mangli Meherbhai Patel,

widow of deceased workmen, from the date of death of

deceased workmen.

3. Facts needed to be considered for disposal of the

present case are as follows:

3.1. Husband of respondent was appointed as a Gangman

in the Western Railway, Dahod in Engineering

Department in the year 1963. The husband of

respondent remained absent from his duty without

intimation to his superior officer for a long period of 93

days in the year 1987, 130 days in year 1988 and 168

days in the year 1989. Charge-sheet was issued on

23.11.1989 for unauthorized absenteeism and Inquiry

Officer was appointed for conducting departmental

Inquiry for the charge of unauthorized absence. The

delinquent participated in the departmental Inquiry and

gave his statement on 30.04.1991, accepting the charge

of unauthorized absenteeism during the period

mentioned in the charge-sheet. The husband of the

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respondent has given explanation that he was suffering

from TB, therefore, he could not resume for the work.

However, no medical certificates were produced neither

treatment was taken from Railway Hospital. The Inquiry

Officer found that the charge of unauthorized absent is

proved, in view of the admission made by the husband of

the respondent, and the report was submitted before the

Disciplinary Authority. The Disciplinary Authority after

going through the report submitted by the Inquiry

Officer imposed punishment of removal from service

with immediate effect vide order dated 08.05.1991.

Challenging the order of removal from the services, the

appeal was filed before the learned appellate Authority

on 15.05.1991 submitting his explanation that as he was

suffering from TB and remained hospital since long time,

he could not inform the same to the superior officer in

time. The learned authority has dismissed the above

appeal by observing that Medical Certificate produced

with the memo of appeal did not cover the period of

absence and the employee is a habitual absentee. After a

period of five years, an application was submitted on

30.08.1997, under section 10 read with section 2A of the

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I.D.Act before the Assistant Labour Commissioner

(Central) praying that instead of dismissal, voluntary

retirement, be permitted to be taken. During pendency

of the proceedings, employee also filed an application

before the revisional Authority on 22.12.1997, asking

the permission to retire voluntarily with retrospective

effect. The revisional authority vide order dated

8.10.1998, rejected the revision petition on the ground

of delay. The said order was produced subsequently,

before the Assistant Labour Commissioner in pending

conciliation proceedings. As the conciliation proceedings

failed, the failure report was submitted before the

appropriate government by the Assistant Labour

Commissioner and thereafter, dispute was referred to

the Tribunal for adjudication on 16.06.1999 and was

registered as reference (I.T.) Case No.129 of 1999. The

employees filed the statement of claim on 12.08.1999

and the written statement was submitted by the

petitioner on 11.09.2000 during the pendency of the

proceedings before the Tribunal, the husband of the

respondent expired on 17.12.2006 and therefore, his

wife submitted an application on 30.01.2007, seeking

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permission to implement her as heirs in place of

workmen. Thereafter, from Industrial Tribunal,

Vadodara, the reference was transferred to the learned

C.G.I.T. Ahmedabad and was renumbered as reference

no.208 of 2204. On 11.05.2014, an application was filed

by Mangliben before the learned Tribunal that she is

also widow of a workman namely Mehrbhai Motibhai

Patel. She has also produced the Death Certificate and

also stated that the deceased workman had two wife's

namely Mangliben and Jhaveriben.

3.2. On 28.04.2018 an application was filed for production

of service book of late employee which was replied by

the petitioner that as the case is too old and as per the

policy retention period of old record is only for three

years. Therefore, the service book cannot be placed on

record. Learned Tribunal after hearing to the parties has

passed an award holding that as the employee has died,

therefore it would be proper to treat the punishment of

removal from service as voluntary retirement with all

retirement benefits and to give the family pension to

Smt. Mangliben from the date of death of deceased

workman. The above order is a subject matter of

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consideration before this Court.

4. Heard learned advocate Ms.Archana Amin for the

petitioner and learned advocate Mr.K.R.Mishra for the

respondent.

4.1. Learned advocate Ms.Archana Amin, for the

petitioner, has submitted that during the inquiry

proceedings, workmen himself had admitted his

unauthorized absent and he has given his own statement

on 30.04.1991, labour court has committed error in

holding that it was imperative on the Inquiry Officer to

provide some intelligent Trade Union leader or some

other sincere man to defend him in Inquiry. It is

submitted that when the charge was admitted by the

employee himself, no difference would have been made

even if some assistance would have been provided. In

addition to that, the charge-sheet itself clearly

mentioned that deceased employee can take assistance

from any trade union for assisting in presenting his case

before the Inquiry Officer. Therefore, it was for the

deceased employee to decide whether he wanted any

assistance or not.

4.2. It is submitted that when the Officer entrusted with

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Departmental Inquiry has come to a conclusion on the

basis of reliable and cogent evidence, then the scope of

judicial review is very narrow. In absence of any

loopholes in proceedings learned Tribunal committed

error in interfering with departmental action. It is

further submitted that a statement of late employee was

recorded on 30.04.1991, which was read over and

explained to him in Gujarati and late employee had also

signed on the said statement. At no point of time, late

employee has disputed his statement or even objected to

the number of days of unauthorized absence. In addition

to that, statement of In-charge Officer, who used to

provide the salary to late employee, was recorded on

01.05.1991. Very specific question for not preparing

salary slip of the period of unauthorized absent period

when it was asked, and it was answered that since the

employee was absent for that period, no salary was paid

to him. The Inquiry Report prepared and submitted

before the Disciplinary Authority and on considering the

report, and after due application of mind, order of

removal was passed on 03.05.1991, which was

challenged by raising the dispute before the Assistant

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Labour Commissioner, Central on 30.08.1997. Learned

labour Court, without giving cogent reasons, came to

conclusion that Departmental Inquiry was held in very

casual manner. Learned advocate Ms.Archana Amin

further submits that it is obligatory upon the learned

labour court to first decide preliminary issue as to

legality of domestic Inquiry and in case found legal then

ought to have decided proportionality of punishment

imposed and if found disproportionate, then only ought

to have interfere with quantum of punishment. Learned

advocate Ms.Archana Amin further submits that by not

doing the same, learned Industrial Tribunal has

committed jurisdictional error and therefore, impugned

award is required to be set aside and petition is required

to be allowed.

4.3. Per contra, it is submitted by the learned advocate for

the respondent Mr.K.R.Mishra that deceased workmen

was the only earning member of the family, and since

the demise of the workman, the family is on the verge of

collapse economically. Learned advocate Mr.K.R.Mishra

has further submitted that extreme penalty of dismissal

or discharge was not justified in the instant case as due

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to his illness, workman has not resumed the duty and as

he was hospitalized for the treatment of T.B., he could

not inform superior officer. Learned advocate

Mr.K.R.Mishra has further submitted that in absence of

providing assistance from the experts, deceased

workman was unable to defend his case. The workman

belongs to tribal areas and therefore, learned labour

court has rightly interfered with the findings of

punishment by exercising the power under section 11A

of the Act. Learned advocate Mr.Mishra submits that in

the instant case, learned C.G.I.T. has found it

appropriate for invoking the powers as the punishment

was found to be disproportionate looking to the

misconduct of alleged willful absence of 391 days in the

span of three years.

4.4. Learned advocate Mr.Mishra has further submitted

that it is well settled rule of practice of the court not to

interfere with exercise of discretionary power under

Article 226 and 227 of the Constitution merely because

two views are possible as there was no patent or flagrant

error in the impugned award. It was prayed to dismiss

the petition and to confirm the order passed by the

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learned Court.

5. Having considered the submissions made by the learned

advocates for the respective parties and on perusing the

records, it transpires that on 23.11.1989, the charge-

sheet was issued to the workmen for remaining on

unauthorized absence. The reply was given by the

workmen due to suffering from T.B. illness, did not

resume the duties and he assured that no such mistakes

would be committed in future, however, he did not

produce any medical certificates or did not taken the

treatment from the railway hospital. It was also

submitted that his father has provided treatment to him

in private hospital. However, he admitted his period of

absenteeism. The order of dismissal was passed on

08.05.1991. An application was filed praying that as he

was suffering from T.B. and admitted in the clinic at

Dahod, he did not resume the duties, neither he could

inform the Superior Officer, therefore, employee be

permitted to join duty as this is the only livelihood.

6. The learned appellate authority has rejected the same on

the ground that Medical Certificate which was produced

for the dates 01.01.1991 to 12.04.1991 and held that

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workmen was a habitual absentee however no previous

instances were referred. A revision application which

was filed was also rejected vide order dated 08.10.1998

by holding that revision is time barred. The dispute

which was raised before the Assistant Labour

Commissioner, Central was referred by the government

to the Industrial Tribunal to decide that whether the

action of the railway administration in removing Shri

Mehrbhai Motibhai from service with effect from

08.05.1991 on the charges of misconduct is legal and

justified?

6.1. Indisputably, the legality and validity of the

Disciplinary Inquiry were never questioned before the

Industrial Tribunal neither any finding were recorded to

that effect. As per the contention raised by the workmen

in his statement of claim he served for 20 years and

Inquiry Officer has failed in providing the legal aid

through some trade union leader or through some

intelligent person.

7. At this stage, the decision rendered by the Apex Court in

the case of Union of India and others Vs Subrata

Nath reported in 2022 (16) scale 828 is required to

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be referred wherein, the parameters were described

within which the High Court can exercise the power

under section 226 and 227 of the Constitution of India in

the matter relating to the disciplinary proceedings. The

relevant paragraphs are reproduced hereinbelow:

"16. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya7 , a two Judge Bench of this Court held as below: "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India8 , Union of India v. G. Ganayutham9 , Bank of India v. Degala Suryanarayana10 and High Court of Judicature at Bombay v. Shashikant S. Patil11).

17. In Chairman & Managing Director, V.S.P. v. Goparaju Sri Prabhakara Hari Babu12, a two Judge Bench of this Court referred to several precedents on the Doctrine of Proportionality of the order of

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punishment passed by the Disciplinary Authority and held that:

"21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved."

18. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India v. P. Gunasekaran13 held thus:

"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, reappreciating even the evidence before the enquiry officer. The finding on Charge I 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 Articles 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 a fair conclusion by some considerations extraneous to the evidence and merits of the case;

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(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 Articles 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."

19. In Union of India v. Ex. Constable Ram Karan14, a two Judge Bench of this Court made the following pertinent observations:

"23. The well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the courts to assume and usurp the function of the disciplinary

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authority.

24. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons."

20. A Constitution Bench of this Court in State of Orissa (supra) held that if the order of dismissal is based on findings that establish the prima facie guilt of great delinquency of the respondent, then the High Court cannot direct reconsideration of the punishment imposed. Once the gravity of the misdemeanour is established and the inquiry conducted is found to be consistent with the prescribed rules and reasonable opportunity contemplated under the rules, has been afforded to the delinquent employee, then the punishment imposed is not open to judicial review by the Court. As long as there was some evidence to arrive at a conclusion that the Disciplinary Authority did, such an order becomes unassailable and the High Court ought to forebear from interfering. The above view has been expressed in Union of India v. Sardar Bahadur15 .

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21. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor.

22. Applying the law laid down above to the instant case, we are of the view that the High Court ought not to have interfered with the findings of fact recorded by the Disciplinary Authority. Charge-1 levelled against the respondent pertained to negligence and dereliction of duty attributed to him for having failed to prevent theft of 800 kgs of copper wires lying at Alif Nagar scrap yard under his security cover while performing duty in the late hours of 7th November, 2007 upto the early hours of 8th November, 2007. Records reveal that the Disciplinary Authority has minutely examined the entire evidence brought on record including the deposition of

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eight prosecution witnesses each of whom have corroborated the charges levelled against the respondent, duly supported by documentary and circumstantial evidence for arriving at the conclusion that the Articles of Charge-I stood proved against the respondent. Pertinently, the respondent did not produce any defence witness and the documents produced by him did not prove anything in his favour."

8. Applying above principle in the instant case, it is not in

dispute that workman has served for more than 20

years. There were no other instances except the present

one wherein, the respondent workman remained absent

unauthorizedly and medical certificate which was issued

suggests that the respondent-workman was suffering

from Tuberculosis and as he was hospitalized for quite

long period he could not resume the duty neither could

inform to the superior officers. It is true that during the

disciplinary proceedings he admitted his unauthorized

absence however, it is also not in dispute that no legal

assistance of some intelligent persons were provided, if