Darshan Kumar vs The Presiding Officer Industrial ...
2022 Latest Caselaw 15083 P&H

CWP-20366-2021                                                                   1



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         IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                         CHANDIGARH
                               -.-

                              CWP-20366-2021
                         Date of decision: 24.11.2022

Darshan Kumar                                                      ......Petitioner
                           Versus
The Presiding Officer Industrial Tribunal-cum-Additional District Judge,
Jalandhar and others
                                                          ...Respondent

Coram:        Hon'ble Mr. Justice Rajbir Sehrawat

Present:      Mr. Vijay Lath, Advocate with
              Mr. Naveen Sharma, Advocate
              for the petitioner
                            -.-

RAJBIR SEHRAWAT, J.(ORAL)

The present writ petition has been filed under Articles 226 and

227 of the Constitution of India, praying for issuance of a writ in the nature

of certiorari, quashing the impugned award dated 30.05.2018 (Annexure P-

10) passed by respondent No. 1 and the order dated 17.03.2011 (Annexure

P-4) passed by respondent No. 2. Further, prayer has been made for

issuance of a writ in the nature of mandamus, directing respondents No. 2 to

4, to notionally re-instate the petitioner in service and pay him the retiral

benefit; as the petitioner has attained the age of superannuation on

31.08.2005.

The facts as reflected in the writ petition are that the petitioner

was serving as Conductor in the Punjab Roadways. While the petitioner

was on duty as Conductor on Bus No. 9813 enroute Jalandhar -

Chandigarh; on 20.11.2000, he was found not having issued tickets worth

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Rs.42/- each to two passengers, who were travelling from Nawanshahar to

Kharar. Therefore, there was an allegation that the petitioner embezzled an

amount of Rs.84/-. With this allegation, the petitioner was issued a charge

sheet. The Enquiry Officer was appointed to conduct the disciplinary

inquiry into the matter. The Enquiry Officer held the petitioner to be guilty

of the misconduct. Accordingly, the punishing authority had passed the

order dated 15.06.2004 (Annexure P-1) terminating service of the

petitioner. The said order was endorsed to the petitioner on 23.06.2004.

Feeling aggrieved, the petitioner preferred an appeal against the aforesaid

order before the appellate authority. However, the appellate authority; vide

order dated 18.10.2006 (Annexure P-2), dismissed the appeal of the

petitioner.

Challenging the said order, the petitioner had filed a civil suit

before the Additional Civil Judge, S.B.S.Nagar. The civil Court, vide

judgment and decree dated 25.02.2010, set aside the impugned order dated

23.06.2004 and directed the respondents to pass a fresh order after hearing

the petitioner. However, the enquiry proceedings conducted by the

department against the petitioner were upheld by the Court. It was only for

re-consideration on the order of punishment that the matter was remanded to

the authority. Thereafter, the petitioner preferred an appeal against the

judgment and decree passed by the civil Court before the District Judge;

which culminated into dismissal on 22.03.2011. Aggrieved against the

action of the department, the petitioner raised an industrial dispute. The

matter was referred to the Labour Court. However, even the Labour Court

has answered the reference against the petitioner. Hence, the present writ

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petition.

Arguing the case, learned counsel for the petitioner has

submitted that the civil Court had earlier set aside the termination order

passed against the petitioner and the respondents were directed to re-

consider the matter; with a direction to the punishing authority to deal with

the objections raised by the petitioner against the punishment order.

However, the respondent authority has again not considered the aspect of

quantum of punishment. The punishing authority has not furnished any

explanation in the punishment order; as to why the lesser punishment could

not be imposed upon the petitioner. Secondly, counsel for the petitioner

has argued that the petitioner has already attained the age of superannuation

on 31.08.2005. Since the petitioner already stood superannuated, the

respondents could not have passed the order of termination. The service of

superannuated person cannot be terminated. Moreover, no termination

order can be passed with retrospective effect. Hence, action of the

respondents is totally illegal and not sustainable. Therefore, the same

deserves to be set aside.

Having heard counsel for the petitioner and having perused the

case file, this Court does not find any substance in the arguments raised by

counsel for the petitioner. Perusal of the judgment and decree passed by the

civil Court; in the first instance; shows that the Court had already upheld the

inquiry and its findings against the petitioner. The said judgment and

decree of the Court was upheld even in the appeal filed by the petitioner.

Therefore, there could not have been any dispute qua misconduct of the

petitioner having been established by the respondent-department. The only

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aspect qua which the matter was remanded by the civil Court to the

respondent authority was that the petitioner should be granted an

opportunity of hearing before inflicting any punishment upon him. The

record shows that pursuant to that decree, the respondent authority had

written several letters, informing the petitioner to file his objections.

However, no such objections were even filed by the petitioner. Not only

that, the respondent-department had even served a show cause notice upon

the petitioner and had his acknowledgment of the same, whereby the

petitioner was granted an opportunity to raise his objections, if any.

However, again the petitioner did not avail that opportunity. Therefore,

there were no objections ever raised by the petitioner before the punishing

authority; against the punishment which was under contemplation of the

punishing authority. The punishing authority, otherwise also, has the

discretion to choose the punishment, prescribed under the service Rules;

once the charge framed against the delinquent employee stands proved.

The Labour Court has rightly upheld the said action of the respondents after

granting full opportunity to the parties. This Court does not find any

illegality or perversity in the findings recorded by the Labour Court in that

regard.

The second argument of counsel for the petitioner is that since

the petitioner stood retired on 31.08.2005, therefore, no termination order

could have been passed on 17.03.2011. However, this argument of counsel

for the petitioner is also devoid of merit and is liable to be rejected.

Needless to say that the initial order of termination of service of the

petitioner was passed on 23.06.2004 and that order has been in continuous

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litigation pending before the Court; and in continuation of the said

proceedings only, the authority has re-considered the matter in compliance

of the judgment and decree; which was passed by the civil Court passed on

25.02.2010. Hence, the order dated 17.03.2011 passed by the punishing

authority is to be seen and considered in continuation of the order dated

23.06.2004 i.e. initial order of punishment. Moreover, even if the argument

of the petitioner is to be taken into consideration, then also, undisputedly,

the petitioner had attained the age of superannuation when his suit was

pending before the Court. Therefore, this argument itself is discounted by

the doctrine of lis pendence. If the petitioner had any claim in that regard,

he was free to raise before the same civil Court. However, the petitioner

did not even raise this issue before that Court. Therefore, the Court itself

had directed the respondents to pass the fresh order. The order dated

17.03.2011 passed by the punishing authority is in continuation of the

earlier proceedings and in compliance of the court decree relating to the

order dated 23.06.2004, therefore, neither this order can be said to be

retrospective in nature nor can it be said an order passed after

superannuation of the petitioner.

Although counsel for the petitioner has also submitted that the

punishment imposed upon the petitioner is on the higher side, however, this

Court does not find any substance even in this assertion of counsel for the

petitioner. This is no gain saying that it is discretion of the punishing

authority to choose any one of the prescribed punishments, to be inflicted

upon the petitioner. The Court is not supposed to interfere into the aspect of

the punishment unless the punishment is so disproportionate to the

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misconduct as to shock the conscience of the Court. In the present case, the

allegation against the petitioner was of embezzlement of the government

money while he was on duty as Conductor. Embezzlement on the part of a

person, who is entrusted with the government money through-out the day,

cannot be belittled by any means. Therefore, this Court does not find any

ground to interfere with the punishment inflicted upon the petitioner.

In view of the above, finding no merits, the present writ

petition is dismissed.

                                                                 (Rajbir Sehrawat)
                                                                      Judge
November 24, 2022
mohan bimbra

                 Whether speaking/reasoned            Yes/No
                 Whether reportable                   Yes/No




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