Karnataka High Court

Sri K Eshappa S/O K Tipanna vs The General Manager on 19 February, 2024

Author: S G Pandit

Bench: S G Pandit

                                                           -1-      W.P. NO.104032/2022




                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 19th DAY OF FEBRUARY, 2024

                                                PRESENT

                                THE HON'BLE MR JUSTICE S G PANDIT

                                                     AND

                               THE HON'BLE MR JUSTICE K V ARAVIND

                              WRIT PETITION NO.104032 OF 2022 (L-RES)

                   BETWEEN:
KM
SOMASHEKAR
                   SR. K.ESHAPPA, S/O K.TIPANNA,
Digitally signed
by K M
                   AGED ABOUT 55 YEARS,
SOMASHEKAR
Date: 2024.02.23
                   H.NO:767, NB, NORTH BLOCK,
14:41:29 +0530
                   NMDC COLONY, DONIMALAI,
                   TQ: SANDUR, DIST: BALLARI-583221.
                                                                     ...PETITIONER

                   (BY SRI. RAVI HEGDE & SRI. VINAYKUMAR BHAT ADVOCATES)


                   AND:

                   THE GENERAL MANAGER,
                   M/S NMDC LTD.,
                   DONIMALAI TOWNSHIP,
                   TQ: SANDUR, DIST: BALLARI-583221.
                                                                    ...RESPONDENT

                   (BY *SRI. VIJAY MALALI, ADVOCATE)

                        THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
                   OF THE CONSTITUTION OF INDIA PRAYING TO, ISSUE A WRIT OR
                   ORDER QUASHING THE AWARD PASSED BY THE PRESIDING OFFICER
                   OF THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR
                   COURT, BENGALURU DATED 19.01.2021, IN CR.03/2013, VIDE
                   ANNEXURE-j AND CONSEQUENT UPON QUASHING THE AFORESAID
                   AWARD ISSUE WRIT OF MANDAMUS DIRECTING THE ESPODNENT TO
                   REINSTATE THE PETITIONER INTO SERVICE WITH ALL BENEFITS.

                         THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON
                   15.02.2024 COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
                   DAY, S G PANDIT, J., MADE THE FOLLOWING:

                          *Corrected vide Chamber Order
                            dated 23.02.2024.

                                              Sd/-
                                             JUDGE
                                     -2-             W.P. NO.104032/2022




                            ORDER

This writ petition under Article 226 of the Constitution

of India is directed against the order dated 19.01.2021 in

CR.03/2013 passed by the Central Government Industrial

Tribunal-cum-Labour Court, Bengaluru (for short, 'the

CGIT') and to set aside the above said award, and

consequently to issue a Writ of Mandamus directing the

respondent to reinstate the petitioner into service with all

benefits.

2. Brief facts of the case are that, the petitioner

was working as Class-IV employee in the respondent-

company. On the allegation of misconduct, misbehaviour

and using filthy language against his superior official, he

was issued with a charge memo on 15.03.2008. After

enquiry, by order dated 10.02.2009, respondent-company

removed the petitioner from service. Against the order of

removal, the petitioner filed statutory appeal which was

dismissed by order dated 14.05.2009. On the same

allegation of using filthy language against superior official, a

criminal case in C.C. No.666/2008 was registered against

the petitioner herein and another employee, and in the said

criminal case, the petitioner was acquitted on 30.07.2011.

Thereafter, the petitioner initiated Conciliation proceedings

before the Conciliation Officer and the Conciliation having

failed, the matter was referred to the CGIT in

CR.No.03/2013. The CGIT, by its order dated 01.03.2019,

held that the enquiry conducted by the respondent-

management was not fair and proper. Thereafter, the

respondent-management examined four witnesses before

the CGIT. The CGIT, under impugned award dated

19.01.2021, has concluded that the charges leveled against

the petitioner were successfully proved, endorsed the order

of dismissal passed by the respondent-management and

thus rejected the Reference. Challenging the award of the

CGIT as well as the order of dismissal passed by the

respondent, the petitioner is before this Court in this writ

petition.

3. Heard Sri. Ravi Hegde, learned counsel for the

petitioner, and Sri Vijay Malali, learned counsel for the

respondent. Perused the entire writ petition papers

including the records of the CGIT.

4. Learned counsel Sri. Ravi Hegde for the

petitioner would contend that the award passed by the CGIT

is contrary to the material on record and since there is no

cogent evidence to prove the charge, the impugned orders

are unsustainable. He submits that the CGIT held that the

enquiry conducted by the respondent-management is not

fair and proper; thereafter, the respondent-management

examined four witnesses to prove the charge, but the

evidence of the four witnesses would not lead to prove the

charge against the petitioner.

5. The learned counsel for the petitioner would

submit that the main allegation against the petitioner is that

the petitioner physically assaulted Sri. K.Jawaharalal,

Manager (Personnel) while the latter was discharging his

duties in the office situated the Administrative Office

Building. To prove the said charge, the respondent-

management examined M.Ws.3, 4, 5 and 6 who are

subordinate officers of Sri. K.Jawaharlal. Therefore, he

submits that evidence of the subordinate officers cannot be

taken note of to prove the charge against the petitioner.

6. The learned counsel for the petitioner would

further submit that on the same allegation of assaulting and

using filthy language against the superior official of the

petitioner, a criminal case was registered and in the said

criminal case, the petitioner has been acquitted. Therefore,

he submits that the petitioner would be entitled for

exoneration in the enquiry proceedings also. It is submitted

that the Presiding Officer of the CGIT failed to appreciate

the evidence of M.Ws.3, 4 & 5 properly and that the CGIT

has not taken note of the fact that the petitioner was

acquitted of the same charges in the criminal proceedings.

7. Lastly, the learned counsel for the petitioner

would contend that the punishment of removal from service

is not commensurate with the nature and gravity of the

charges leveled against the petitioner. He would submit

that, even assuming that the charge of abusing or using

filthy language against the superior official is proved, the

same would not attract imposing of severe punishment of

removal from service, but it might attract any minor

punishment. In that regard, the learned counsel places

reliance on the decision of the Hon'ble Apex Court in Ved

Prakash Gupta V. M/s. Delton Cable India (P.) Ltd.1; Ram

Kishan V. Union of India and Ors.2; and Syed Khader

Mohiuddin V. The Chairman Tamil Nadu Public Service

Commissioner & Anr3. Thus, the learned counsel for the

petitioner would pray for allowing the writ petition, to set

aside the impugned orders, and to direct the respondent to

reinstate the petitioner.

8. Per contra, Sri. Vijay Malali, learned counsel for

the respondent-management would support the order

passed by the CGIT and would submit that an employee

who misbehaves, assaults and uses filthy language against

superior officials would deserve the punishment of removal

or dismissal; if such indiscipline is permitted, it would be

difficult for the management to carry out the administration

and it would affect the entire working atmosphere. Learned

counsel, referring to the evidence of M.Ws.3, 4 and 5 would

(1984) 2 SCC 569

(1995) 6 SCC 157

1997(II) LLJ 111

submit that the management has proved the charge beyond

doubt. He submits that the petitioner has admitted in his

evidence that he had to talk loudly with Sri. K.Jawaharlal,

but denied assaulting Sri. K.Jawaharlal.

9. Learned counsel for the respondent-management

would further contend that though the petitioner is

acquitted of the charges leveled against him in the criminal

case, the same cannot be taken note of since the standard

of proof in a criminal case is entirely different from that of

the proof in a departmentmental enquiry. He submits that

preponderance of probabilities would be sufficient in a

departmental enquiry and it would not attract strict proof of

evidence. Further, the learned counsel would submit that, if

this Court comes to the conclusion that the petitioner would

be entitled for reinstatement, the petitioner shall not be

entitled for backwages since he has not worked. Thus, he

prays for dismissal of the writ petition.

10. Having heard the learned counsels for the parties

and on perusal of the writ petition papers and also the

records of the CGIT, the only point which falls for

consideration is,

Whether the punishment of removal from service is proportionate to the nature and gravity of charge leveled against the petitioner?

11. The answer to the above point would be in the

negative for the following reasons:

(a) Under Article 226 of the Constitution of India, judicial

review in service matters that too in a departmental

proceeding is very limited. Moreover, in exercise of

power of judicial review, the High Court would not act

as an Appellate Authority and it is important to note

that the Court would not re-appreciate the evidence,

but this Court would examine as to whether the

procedure adopted in disciplinary proceedings is fair and

reasonable and as to whether the charged employee is

given reasonable opportunity to defend himself.

(b) The Hon'ble Apex Court in the case of State Bank of

India Vs. A.G.D.Reddy4, has considered the scope of

judicial review in disciplinary proceedings and, at

paragraph 42, it is held as follows:

"42. It is now well settled that the scope of judicial review against a department enquiry proceeding is very limited. It is not in the nature of an appeal and a review on merits of the decision is not permissible. The scope of the enquiry is to examine whether the decision-making process is legitimate and to ensutre that the findings are not bereft of any evidence. If the records reveal that the findings are based on some evidence, it is not the function of the court in a judicial review to re-

appreciate the same and arrive at an independent finding on the evidence. This lakhman rekha has been recognized and reiterated in a long line of judgments of this Court."

that he physically assaulted Sri. Jawaharlal, Manager

(Personnel) while he was discharging his duties in his

office situated in Administrative Office Building. No

2023 SCC OnLine 1064

doubt, in terms of Clause 28(2)(vii) & (xii) assaulting

threatening, intimidation of any workman or officer of

the management within the mine/feasibility/premises/

boundaries would amount to misconduct. Though the

CGIT held that the enquiry conducted by the

respondent-management is not fair and proper, to

prove the charge against the petitioner, the

management examined four witnesses before the CGIT

and the petitioner had opportunity to cross-examine

these witnesses. In fact, the petitioner cross-examined

management witnesses, but nothing in favour of the

petitioner is elicited in the cross-examination. In fact, as

stated above, this Court would not go into the

sufficiency of evidence and re-appreciate the evidence.

This Court would only examine as to whether there is

evidence and it is for the management to prove the

charge on preponderance of probabilities. On going

through the evidence on record, we are of the view that

the charge against the petitioner with regard to using

filthy language and assaulting his superior official i.e.,

Manager (Personnel) is proved. The CGIT has

thread-bare discussed the evidence of management

witnesses and has rightly come to the conclusion that

the charge against the petitioner is proved. The

evidence of the petitioner would indicate that the

petitioner has raised his voice though he has denied

assaulting his superior official. The evidence of M.Ws.5

and 6 as well as other witnesses would indicate that

they were present at the spot when the incident took

place. In the above circumstances, we are of the view

that there is no ground or material to interfere with the

finding that the charges are proved.

(d) Learned counsel for the petitioner contended that since

the petitioner is exonerated in the criminal case, he

would be entitled for exoneration in the departmental

enquiry too. It is to be noted that standard of proof in

criminal case and in departmental enquiry stand on

different footing. In departmental proceedings, strict

rule of evidence would not be applicable and charge

could be proved on preponderance of probabilities.

Moreover, it is not forthcoming from the records as to

whether the acquittal of the petitioner in the criminal

proceedings is honourable acquittal or acquittal on

technical grounds or whether it is for want of evidence.

In that circumstance, the said contention is liable to be

rejected.

(e) The contention that the punishment of removal from

service is disproportionate to the nature and gravity of

charge against the petitioner requires consideration. It

is settled position of law that if the punishment imposed

by the management or disciplinary authority or the

appellate authority shocks the conscience of the

Court/Tribunal, the Court could interfere with such

punishment and could direct the management or

authority to reconsider the punishment imposed or in

appropriate cases, it could impose appropriate

punishment assigning reasons.

(f) The Hon'ble Apex Court in Ved Prakash Gupta (supra),

in an identical fact-situation of dismissal of employee

from service for abusing the officer of the management

within the premises of the factory, has held that the

termination of service is invalid and unsustainable in

law. In Ved Prakash Gupta's case (supra), at paragraph

13, it is observed as follows:

"13. ......We are therefore of the opinion that the punishment awarded to the appellant is shockingly disproportionate regard being had to the charge framed against him. We are also of the opinion that no responsible employer would ever impose in like circumstances the punishment of dismissal on the employee and that victimization or unfair labour practice could well be inferred from the conduct of the management in awarding the extreme punishment of dismissal for a flimsy charge of abuse of some worker or officer of the management by the appellant within the premises of the factory. We therefore hold that the termination of the appellant's service is invalid and unsustainable in law, and that he is entitled to reinstatement with full back wages and other benefits including continuity of service. The appeal is allowed accordingly with costs quantified at Rs 1000. The writ petition is dismissed without costs."

In Ram Kishan's case (supra), at paragraphs 11 and

12, the Hon'ble Apex Court has held as follows:

"11. It is next to be seen whether imposition of the punishment of dismissal from service is proportionate to the gravity of the imputation. When abusive language is used by anybody against a superior, it must be understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of abusive language. No strait-jacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service. Each case has to be considered on its own facts. What was the nature of the abusive language used by the appellant was not stated.

12. On the facts and circumstances of the case, we are of the considered view that the imposition of punishment of dismissal from service is harsh and disproportionate to the gravity of charge imputed to the delinquent constable. Accordingly, we set aside the dismissal order. We hold that imposition of stoppage of two increments with cumulative effect would be an appropriate punishment. So, we direct the disciplinary authority to impose that punishment. However, since the appellant himself is responsible for the initiation of the proceedings, we find that he is not entitled to back wages; but, all other consequential benefits would be available to him."

(g) In the instant case also, the charge against the

petitioner is of assaulting and using filthy language

against his superior official. With regard to the assault,

the CGIT has noted that there is material contradiction

with regard to assault, but ultimately, has held that the

petitioner voluntarily entered the chambers of Sri.

K.Jawaharlal, on 29.02.2008, abused him filthily,

became violent and slapped him with his chappal in the

presence of other executives. However, in view of the

decisions of the Hon'ble Apex Court referred to above,

we are of the view that the penalty of removal of the

petitioner from service on the proof of misconduct of

abusing by using filthy language and slapping, in the

peculiar facts of the present case, would be shockingly

disproportionate to the proved charge. Hence, the order

of removal requires to be set aside with a direction to

the respondent-management/disciplinary authority to

impose any other punishment other than the removal or

dismissal or compulsory retirement.

(h) Since we have come to the conclusion that the charge

of using filthy language against superior official is

proved and as the petitioner has not worked from the

date of removal, he would not be entitled for backwages

and continuity of service.

12. For the reasons recorded above, the following:

ORDER

i) The writ petition is allowed in part.

ii) The order of penalty of removal under order

dated 10.02.2009 and the Appellate Authority

dated 14.02.2009, and the order of the CGIT

dated 19.01.2021 are set aside with a direction

to the disciplinary authority to impose any other

punishment on the proved charge of misconduct

other than punishment of removal, dismissal or

compulsory retirement from service.