D.A.V Public School vs J
2021 Latest Caselaw 4021 HP

                                                     Reportable




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      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA





                   ON THE 20th DAY OF AUGUST, 2021
                             BEFORE





             HON'BLE MR. JUSTICE SURESHWAR THAKUR

                CIVIL WRIT PETITION NO. 52 OF 2017
    Between:-



       THROUGH ITS PRINCIPAL.

    2. D.A.V MANAGEMENT COMMITTEE

    1. D.A.V PUBLIC SCHOOL, PHASE-II,
       SECTOR-IV BELOW B.C.S, NEW SHIMLA

       CHITRA GUPT ROAD, NEW DELHI,
       THROUGH ITS PRESIDENT.

      PETITIONERS 1 AND 2 THROUGH
      SMT. ANURADHA SHARMA


      W/O SH. SAMRATH RAJ SHARMA
      PRINCIPAL DAV PUBLIC SCHOOL,
      NEW SHIMLA, DISTRICT SHIMLA. H.P.




                                                     ........ PETITIONERS.
    ( BY MR. RAHUL MAHAJAN, ADVOCATE)





    AND





    SMT. KAMAL W/O SH. SUKH DEV,
    R/O SHOBHA RAM BUILDING, NEW
    SHIMLA, TEHSIL AND DISTRICT
    SHIMLA. H.P.
                                                     .....RESPONDENT
    ( BY. MR. SHANTI SWAROOP, ADVOCATE)

    RESERVED ON: 17.8.2021
    DECIDED ON : 20.8.2021


    This petition coming on for orders this day, the Court passed the following:-

                                ORDER

The hereinafter extracted reference became transmitted by

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the appropriate government to the Labour Court-cum-Industrial

Tribunal, Shimla.

"Whether the action of the Principal DAV Public School Phase-II, Sector-IV, Below BCS, New Shimla-9 to

terminate the services of Smt. Kamal W/o Shri Sukh Dev workman w.e.f 23.8.2005 on the basis of domestic enquiry and without complying the provisions of the Industrial

Disputes Act, 1947 is proper and justified? If not, what

relief of service benefits and amount of compensation the above aggrieved workman is entitled to?"

2. The Industrial Tribunal-cum-Labour Court, Shimla, in the

operative part of its verdict, as, becomes extracted hereinafter.

ordered for forthwith re-instatement in service of the petitioner

therein/respondent herein alongwith seniority and continuity.

However, the relief of back wages became declined to her.

"As a sequel to my above discussion and findings on issues No. 1 to 4, the claim of the petitioner succeeds and is hereby partly allowed and the petitioner is ordered to be reinstated in service forthwith with seniority and continuity. However the petitioner is not entitled to back wages and as such the reference is answered in favour of the petitioner and against the respondents. Let a copy of this award be sent to the appropriate government for

publication in official gazette. File, after completion, be

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consigned to records."

3. The Tribunal on issue No.1, as, becomes extracted

hereinafter, had rendered findings in favour of the employer, and,

against the workman. However, the employee has not challenged,

the findings adversarial to her, as become returned upon the here-

in-after extracted issue. Consequently, the findings as become

returned on hereinafter extracted issue do acquire finality and

conclusivity.

"1. Whether the action of the respondent to terminate

the services of the petitioner w.e.f 23.8.2005 on the basis of domestic enquiry and without complying with the

provisions of Industrial Disputes Act, 1947 is improper and unjustified as alleged? OPP"

4. Therefore, the only res-controversea, which requires

meteing of an adjudication, is whether the learned Tribunal

concerned, on applying the principle of proportionality, inter-se,

articles of charge, as, drawn against the respondent vis-à-vis the

order for her termination from service, could validly conclude, that

her termination from service, is grossly disproportionate, to the

articles of charge, as, became framed against her.

5. At the outset, it is to be borne in mind, that the

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petitioner/employer, is an educational institution, and, the highest

standards of discipline are to be maintained by all the employees of

the educational institutions concerned. Therefore, bearing in mind

the afore necessity, of highest standards of discipline, being

maintained amongst the entire staff concerned working in the

educational institution concerned. Consequently, this Court has to

test whether, given the articles of charge framed, against the

workman/respondent, hence the penalty of termination from service,

as become imposed upon her, was merit worthy, and or whether

dehors application of the principle of proportionality inter-se the

charge drawn against the respondent, and, the penalty of

termination of service as become imposed upon her, rather it was at

all necessary to become imposed, or becoming imposed, given the

breach of discipline caused by the errant conduct of the workman, in

the educational institution concerned where she was serving.

6. Further more, it is also to be adjudged whether the

imposition of penalty of termination of service, hence upon the

respondent, shocks the conscience of this Court, and, or hence that

whether there is any disparaging caused to the principle of

proportionality inter-se the misconduct of the workman, vis-à-vis, the

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penalty of termination of service, as, became imposed upon her.

7. In making a determination of the afore, it is relevant to bear

in mind, a judgment of the Hon'ble Apex Court reported in (2013) 10

Supreme Court Cases 106, and, rendered in case titled as Deputy

Commissioner, Kendriya Vidyalaya Sangthan and others versus J.

Hussain, relevant paragraphs 7 to 14 whereof are extracted

hereinafter:-

7. When the charge is proved, as happened in the instance case, it is the disciplinary authority with whom lies the

discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of charge.

The Disciplinary Authority is to decide a particular penalty

specified in the relevant Rules. Host of factors go into the decision making while exercising such a discretion which

include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist.

8. The order of the Appellate Authority while having a relook of the case would, obviously, examine as to whether the punishment imposed by the Disciplinary Authority is reasonable or not. If the Appellate Authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty

so imposed by the Disciplinary Authority. Such a power which

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vests with the Appellate Authority departmentally is ordinarily

not available to the Court or a Tribunal. The Court while undertaking judicial review of the matter is not supposed to

substitute its own opinion on reappraisal of facts.(See: Union Territory of Dadra & Nagar Haveli vs. Gulabhia M.Lad (2010) 5 SCC 775) In exercise of power of judicial review, however, the Court can interfere with the punishment imposed when it is

found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when punishment is shockingly

disproportionate, suggesting lack of good faith. Otherwise,

merely because in the opinion of the Court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities.

9. When the punishment is found to be outrageously disproportionate to the nature of charge, principle of

proportionality comes into play. It is, however, to be borne in

mind that this principle would be attracted, which is in tune with doctrine of Wednesbury Rule of reasonableness, only

when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the Court and the Court is forced to believe that it is totally unreasonable and arbitrary. This principle of proportionality was propounded by Lord Diplock in Council of Civil Service Unions vs. Minister for Civil Service in the following words:

"Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently

classify under three heads of the grounds on which

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administrative action is subject to control by judicial review.

The first ground I would call "illegality", the second "irrationality" and the third "procedural impropriety". This is not

to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality."

10. Imprimatur to the aforesaid principle was accorded by this Court as well, in Ranjit Thakur vs. Union of India (1987) 4 SCC

611. Speaking for the Court, Justice Venkatachaliah (as he

then was) emphasizing that "all powers have legal limits" invokes the aforesaid doctrine in the following words:

"The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should

not be vindictive or unduly harsh. It should not be so

disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of

proportionality as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review."

11. To be fair to the High Court, we may mention that it was conscious of the narrowed scope of the doctrine of proportionality as a tool of judicial review and has stated so

while giving lucid description of this principle in the impugned

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judgment. However, we are of the view that it is the application

of this principle on the facts of this case where the High Court has committed an error while holding that the punishment was

shocking and arbitrary. Moreover, while interfering therewith, the High Court has itself prescribed the punishment which, according to it, "would meet the ends of justice", little realizing that the Court cannot act a disciplinary authority and impose a

particular penalty. Even in those cases where it is found that the punishment is disproportionate to the nature of charge, the Court can only refer the matter back to the Disciplinary

Authority to take appropriate view by imposing lesser

punishment, rather than directing itself the exact nature of penalty in a given case.

12. Here in the given case, we find that the High Court has totally downplayed the seriousness of misconduct. It was a case where the respondent employee had gone to the place of

work in a fully drunken state. Going to the place of work under

the influence of alcohol during working hours (it was 11.30 a.m.) would itself be a serious act of misconduct. What

compounds the gravity of delinquency is that the place of work is not any commercial establishment but a school i.e. temple of learning. The High Court has glossed over and trivialized the aforesaid aspect by simply stating that the respondent was not a "habitual drunkard" and it is not the case of the management that he used to come to the school in a drunken state "regularly or quite often". Even a singular act of this nature would have serious implications.

13. There is another pertinent aspect also which cannot be lost sight of. The respondent had barged into the office of the

Principal. As per the respondent's explanation, he had gone to

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the market and his friends offered him drinks which he

consumed. It was a new experience for him. Therefore, he felt drowsiness immediately after consumption of alcohol and

while returning home, he remembered that he had left some articles in the school premises and therefore he had gone to school premises to pick up those left out articles belonging to him. If the respondent was feeling drowsiness as claimed by

him where was the occasion for him to go to the school in that condition? Moreover, if he had left some articles in the school premises and had visited the school only to pick up those

articles, what prompted him to enter the office of the Principal?

There is no explanation of this behavior on the part of the respondent in his reply. It would, obviously, be a case of forcible entry as it is no where pleaded that the Principal asked

him to come to his room or he had gone to the room of the Principal with his permission or for any specific purpose.

14. Thus, in our view entering the school premises in working

hours i.e. 11.30 a.m. in an inebriated condition and thereafter forcibly entering into the Principal's room would constitute a

serious misconduct. Penalty of removal for such a misconduct cannot be treated as disproportionate. It does not seem to be unreasonable and does not shock the conscience of the Court. Though it does not appear to be excessive either, but even if it were to be so, merely because the Court feels that penalty should have been lighter than the one imposed, by itself is not a ground to interfere with the discretion of the disciplinary authorities. The penalty should not only be excessive but disproportionate as well, that too the extent that it shocks the conscience of the Court and the Court is forced to find it as totally unreasonable and arbitrary thereby offending the

provision of Article 14 of the Constitution. It is stated at the

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cost of the repetition that discretion lies with the

disciplinary/appellate authority to impose a particular penalty keeping in view the nature and gravity of charge. Once, it is

found that the penalty is not shockingly disproportionate, merely because in the opinion of the Court lesser punishment could have been more justified, cannot be a reason to interfere with the said penalty."

8.

The significance of the afore verdict becomes aroused from

the factum, that this Court has concluded above, vis-à-vis, the

necessity of maintenance of highest standards of discipline in the

educational institution concerned, and, when in judgment (supra),

though the delinquent act of the employee therein, became

comprised in his coming to school under the influence of liquor, yet,

the Hon'ble Apex Court concluded, that the imposition therein, of

penalty of removal from service, was not disproportionate, vis-à-vis,

the gravity of mis-conduct (supra), given the afore misconduct of the

petitioner hence shocking the conscience of the Hon'ble Apex Court.

Therefore, unless material on record occurs, and is suggestive, that

the errant conduct of the workman, as becomes comprised, in hers

provenly absenting herself from duties, and without hers making

alternative arrangements for ensuring the cleanliness and hygiene,

of the premises of the school concerned, as well as the hygiene,

and, cleanliness of toilets, used by the staff and children, hence the

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application of the principle of proportionality inter-se the afore

proven misconduct made by her, is, amenable for her services being

terminated or hers being amenable for hers being re-instated in

service with seniority and continuity. The trite fulcrum obviously is

comprised, in, trite inter-se drawings of parity inter-se the mis-

conduct of the employee in verdict (supra), with the proven mis-

conduct of the respondent herein.

9. The afore proven charges acquire conclusivity, as no

challenge thereon, has been cast by the respondent. The judgment

supra when hence proceeded to not apply the principle of

proportionality vis-à-vis an educational institution, even with respect

to proven misconduct therein, of the employee therein, arriving in

the school concerned rather under the influence of liquor. Therefore,

abstention of the respondent from duty without any leave from the

school, and, hers not ensuring alternative arrangements being

made, for ensuring the hygiene and cleanliness of the premises, of

the school concerned, during the afore period, does also shock the

conscience of this Court, as the misconduct of the employee in

verdict (supra) did shock the conscience of the Hon'ble Apex Court.

Therefore the Court concludes that the respondent/employee was

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not entitled to receive the benefits of any purported dis-

proportionality inter-se proven misconduct (supra), vis-à-vis, the

penalty of termination of service as became imposed by her by the

disciplinary authority. Rather for ensuring that the highest standards

of discipline are maintained in educational institutions, the penalty of

termination of her service, is valid.

r Significantly since the afore

ground of proven misconduct tantamounts to completest breaches

of discipline in the school concerned, and, deserves not being

condoned.

10. Consequently, the writ petition is allowed, and, the

afore operative portion of the award as becomes impugned before

this Court is quashed. All pending applications stand disposed of

accordingly.

    20th August, 2021                             (Sureshwar Thakur),
       (priti)                                         Judge.