Naveen Kumar vs The Vice President (Works)
2021 Latest Caselaw 3575 HP

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             HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                C.W.P. No. 1305 of 2019

                                                Date of decision: 05.08.2021




                                                                                 .

    Naveen Kumar                                                         ...Petitioner
                                      Versus





    The Vice President (Works), M/s Himachal Exicom
    Communications Ltd.                            ...Respondents
    ____________________________________________________
    Coram:
    The Hon'ble Mr. Justice Ravi Malimath, Acting Chief Justice



    Whether approved for reporting1 :
                         r                  to
    The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge

    For the Petitioner(s):            Mr. Neel Kamal Sharma, Advocate

    For the Respondents:              Mr. Rahul Mahajan, Advocate


                         Through Video Conference
    ____________________________________________________
    Jyotsna Rewal Dua,J.

Petitioner was a Senior Operator in the respondent-

Company. After issuing charge sheet, holding inquiry and

concluding the disciplinary proceedings, his services were

terminated by the respondent on 12.08.2004. Whether

punishment of termination of petitioner's services was

commensurate with the charges levelled against him was the

reference sent by the appropriate Government for adjudication to

Whether Reporters of local newspaper are permitted to see the judgment ?

the learned Labour Court. The reference was answered against

the petitioner on 07.10.2015. Three years later, he invoked

jurisdiction of this Court by way of instant writ petition challenging

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the award.

2. The petitioner was working as Senior Operator with

the respondent-Company. On 08.05.2004, respondent issued

charge sheet to the petitioner. The charges levelled against him

in the charge sheet were on the basis of complaints of physical

assault made by Hardev Thakur and of outrage of modesty, made

by Sushma Sharma co-workers of the petitioner. The petitioner

responded to the charge sheet. Inquiry was conducted against

him. The inquiry officer held that charges were proved against the

petitioner. After conclusion of the inquiry, show cause notice

alongwith inquiry report was issued to the petitioner on

31.07.2004. After considering the relevant documents, petitioner's

services were terminated vide order dated 12.08.2004.

The petitioner's case before the learned Labour

Court was that the inquiry was not conducted fairly. Principles of

natural justice were not complied with. The penalty imposed upon

the petitioner was not commensurate to the charges levelled

against him. The respondent pleaded that petitioner's services

were terminated on the basis of a proper inquiry held in

accordance with law and in a fair manner.

After appreciating the respective contentions, learned

Labour Court held that there was overwhelming evidence to

conclude that the inquiry was conducted in a fair and proper

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manner. It was also held that the punishment imposed upon the

petitioner was commensurate to the charges levelled against him.

The award passed by the learned Labour Court has been

challenged in this petition.

3. Learned counsel for the petitioner reiterated the

stand taken by the petitioner before the learned Labour Court.

Learned counsel submitted that inquiry was not conducted in a

fair manner and that penalty was not proportionate to the charges

levelled against the petitioner. Learned counsel for the

respondent supported the order passed by the learned Labour

Court.

4(i) Conduct of inquiry

It is settled legal position that while exercising the

power of judicial review, the Court will not act as an appellate

Court for re-appreciating the evidence led in the departmental

inquiry. The findings of fact recorded in the departmental inquiry

are not to be interfered with except when the same were based

on no evidence or are absolutely perverse.

Considering plethora of previous judgments on the

issue, Hon'ble Apex Court in (2020) 3 Supreme Court Cases

423, titled State of Karnataka and another versus N. Gangaraj

after noticing the facts of the case wherein Disciplinary Authority

agreed with inquiry officer's findings about delinquent police

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official being guilty of misconduct and imposed penalty of

dismissal, which was affirmed in appeal, observed that the

Tribunal and the High Court could not have interfered with

findings of facts recorded by re-appreciating the evidence as if

they were the Appellate Authority. It was also observed that

power of judicial review is confined to the decision making

process and is not akin to the power of Appellate Authority.

Power of Judicial review is meant to ensure that the individual

receives fair treatment and not to ensure that the conclusion

which the authority reaches is necessarily correct in eyes of law.

The Court in its power of Judicial review does not act as an

appellate authority to re-appreciate evidence and to arrive at its

own independent findings. It is only where the conclusion reached

by disciplinary authority is perverse or suffers from patent error on

face of record or based on no evidence at all that interference will

be called for. Question of adequacy of evidence is not required to

be gone into. Interference with decision of Departmental Authority

is permitted if such Authority had held the proceedings in violation

of prescribed procedure or in violation of the principles of natural

justice. The Hon'ble apex Court further held as under :-

"14. On the other hand learned counsel for the respondent relies upon the judgment reported as Allahabad Bank v. Krishna Narayan Tewari (2017) 2 SCC 308, wherein this Court held that if the disciplinary

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authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the Writ Court could interfere with the finding of

the disciplinary proceedings. We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the

disciplinary authority. It is not the case of no evidence or that the findings are perverse. The finding that the respondent is guilty of misconduct has been interfered

with only on the ground that there are discrepancies in the

evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. The Inquiry Officer has appreciated the evidence and returned

a finding that the respondent is guilty of misconduct.

15. The disciplinary authority agreed with the findings of

the enquiry officer and had passed an order of punishment. An appeal before the State Government was

also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial

review, the Tribunal or the High Court could not interfere with the findings of facts recorded by reappreciating evidence as if the Courts are the Appellate Authority. We may notice that the said judgment has not noticed larger bench judgments in State of A.P. Vs. S. Sree Rama Rao, AIR 1963 SC 1723 and B.C. Chaturvedi Vs. Union of

India, (1995) 6 SCC 749 as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law.

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16. Accordingly, appeal is allowed and orders passed by the Tribunal and the High Court are set aside and the

order of punishment imposed is restored."

In the instant case, the petitioner's plea that inquiry

was not conducted in accordance with law or that the principles

of natural justice were infringed, is not supported by the evidence.

The petitioner while appearing in the witness box as PW-1

admitted that he was issued mis-conduct letter and suspension

letter on 16.04.2004 with respect to a complaint of assault alleged

against him by his co-worker Hardev Thakur. He has also

admitted that on 08.05.2004, a charge sheet was issued to him

levelling charges of assault on co-worker Hardev Thakur and

charges of outraging modesty on co-worker Sushma Sharma.

Petitioner admitted joining the inquiry proceedings. He has also

admitted that the inquiry procedure was explained to him by the

inquiry officer. He has also admitted that he was told by the

management of his entitlement to be assisted by any co-worker

as per standing order. He has cross examined the management

witnesses. He has also signed the inquiry proceedings. He has

admitted having not made any complaint that inquiry officer was

biased or conducting inquiry in violation of principles of natural

justice. He has also admitted that copy of inquiry report was

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supplied to him. Petitioner has admitted having received a second

show cause notice issued on 31.07.2004 after conclusion of the

inquiry.

With the assistance of learned counsel for the

parties, we have gone through the inquiry report. A perusal of this

report makes it evident that the petitioner was allowed to cross

examine the management witnesses and that inquiry was

conducted in a fair manner. The inquiry officer (IO) has also

stepped into the witness box as RW-2 before the learned Labour

Court. The I.O. deposed that the inquiry was conducted in

accordance with law after associating the petitioner. The entire

mode and manner of conducting the inquiry was elaborated by

this witness. He also stated that inquiry proceedings were duly

signed by the petitioner. Copies of statements of witnesses were

supplied to the petitioner. Inquiry was conducted as per

procedure and law. The Personnel Officer of the respondent also

stepped into the witness box as RW-1 and stated that the charge

sheet issued by the respondent was duly received by the

petitioner wherein charges of intimidation and threatening the co-

worker, indulging in riotous, disordering behavior and indulging in

eve-teasing and outraging the modesty of a female employee

were leveled against the petitioner.

In view of the evidence produced by the parties, it

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can be safely concluded that the inquiry against the petitioner

was conducted in accordance with law. The principles of natural

justice were followed while conducting the inquiry. The petitioner

was associated with the inquiry proceedings. He was given due

opportunity to lead evidence and to cross examine the witnesses

of the management. Learned counsel for the petitioner could not

point out infraction of any rule or procedure or law in conduct of

the inquiry. Therefore, we concur with the award passed by the

learned Labour Court that the inquiry conducted against the

petitioner was held in accordance with law.

4(ii) Punishment imposed upon the petitioner.

Learned counsel for the petitioner next contended

that even assuming the petitioner to be guilty of the charges

leveled against him, then also, the punishment of termination

from service imposed upon him is not proportionate to the

charges.

The sexual harassment of a woman at workplace

has been held to be a violation of fundamental right to gender

equality and right of life and liberty Elucidating it, the apex Court

held that there can be no compromise with such violation.

Reference in this regard can be made to (1999) 1 SCC 759

Apparel Export Promotion Council Vs. A.K. Chopra, wherein it

was held as under :-

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"26. There is no gainsaying that each incident of sexual harassment, at the place of work, results in violation of the Fundamental Right to Gender Equality

and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India. As early as in 1993 at the ILO Seminar held at

Manila, it was recognized that sexual harassment of woman at the work place was a form of gender discrimination against woman. In our opinion, the

contents of the fundamental rights guaranteed in our

Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a

constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and

honour of a female and needs to be eliminated and that

there can be no compromise with such violations, admits of no debate x x x x x x x x x x x x x x x x x x ."

In M.P. Electricity Board Vs. Jagdish Chandra

Sharma, (2005) 3 SCC 401, it has been held by the apex Court

that where an employee assaulted and injured his superior

officer at the work place, in the presence of other employees, the

act amounted to breach of indiscipline in the organization and in

such case the punishment of dismissal cannot be termed unduly

harsh or disproportionate. The relevant para of the judgment

reads as follows :-

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"9. x x x x x x x x x xObviously this idea is more relevant in considering the working of an organization like the employer herein or an industrial

undertaking. Obedience to authority in a workplace is not slavery. It is not violative of one's natural rights. It is essential for the prosperity of the organization as well as

that of its employees. When in such a situation, a punishment of termination is awarded for hitting and injuring a superior officer supervising the work of the

employee, with no extenuating circumstance established,

it cannot be said to be not justified. It cannot certainly be termed unduly harsh or disproportionate. The Labour Court and the High Court in this case totally misdirected

themselves while exercising their jurisdiction. The Industrial Court made the correct approach and came to the right conclusion."

5. No procedural infirmity or irregularity in the conduct

of disciplinary proceedings has been brought to our notice. The

inquiry proceedings held against the petitioner proved him to be

guilty of assaulting his male co-worker. He was also proved to

have outraged the modesty of a woman co-worker. The FIR in

this regard though was not lodged, presumably due to reluctance

on part of the female victim. Petitioner having been held guilty of

outraging the modesty of a female co-worker and physically

assaulting a male co-worker had made himself liable for stringent

punishment. Petitioner was guilty of gross mis-conduct. He had

also breached discipline. Punishment of termination of services in

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the proved facts of the case cannot be said to be unduly harsh or

disproportionate to the charges proved against him. The award

passed by the learned Labour Court is well reasoned and does

not call for any interference.

Finding no merit in this writ petition, the same is

dismissed alongwith pending applications, if any.

                                             ( Ravi Malimath )
                                            Acting Chief Justice



    5th August, 2021 (K)                    ( Jyotsna Rewal Dua )
                                                   Judge