Harbansh Singh vs Managing Director

Nawal Kishore Agarwal, J.

This instant petition under Article 227 of the Constitution of India assails the legality and propriety of the order dated 10.11.2003 passed by the Industrial Court, Raipur (C.G.) in Civil Appeal No. 108/MPIR/A-n/2000 allowing the respondent''s appeal and setting aside the order passed by the Labour Court dated 28.03.2000 in case No. 4/MPIR/95. Facts, in brief, necessary for disposal of this petition are as under:

"i. The petitioner, who was employed in Plant Vehicle Pool of Bhilai Steel Plant as Vehicle Operator, was charge-sheeted on 31.08.1993 on the allegation of theft of 16 brass plates. The charge-sheet was replied by the petitioner. Departmental Enquiry was held and after Departmental Enquiry, the petitioner was terminated/removed from his services.

ii. Feeling aggrieved therewith, the petitioner preferred an application before the Labour Court. The Labour Court, though held Departmental Enquiry as valid, modified the order of termination into reinstatement with only 50% backwages. There-against, the respondent herein preferred an appeal before the Industrial Court and Industrial Court, vide order impugned, reversed the order of Labour Court and restored the order passed by the appointing authority/disciplinary authority terminating/removing the petitioner from his services. Hence, this petition."

Shri Pradeep Saxena, learned counsel appearing for the petitioner, would submit: the Industrial Court failed to see that conclusion of Enquiry Officer is perverse; once the Labour Court opted to interfere in quantum of punishment by virtue of powers conferred under Section 107-A of the M.P. Industrial Relations Act, 1960 (for short, ''Act of 1960), then the right to livelihood may not be deprived which is the spirit of Constitution as well as spirit of Section 107-A of the Act of 1960, which is inserted in the Act with mercy point of view. It was further contended, the petitioner has also been acquitted from the charge of theft by the Co-ordinate Bench of this Court in Criminal Revision No. 7/1998 vide order dated 17th August, 2009, and so also, the punishment order passed in Departmental Enquiry deserves to be quashed and the order passed by the Labour Court deserves to be restored.

On the other hand, Dr. N.K. Shukla, learned Senior Counsel appearing for the respondent, contended: the petitioner''s contention before the Labour Court was only regarding proportionality of the punishment awarded and not against the Departmental Enquiry. The finding of the Labour Court was also not challenged by the petitioner by filing cross-objection and the above finding had attained finality and now the petitioner is estopped from challenging the validity of Departmental Enquiry. It was further contended: misconduct of theft is serious misconduct and for that, the punishment of termination/removal is the appropriate punishment. It was also contended: the order of termination/removal has been passed on the basis of Departmental Proceedings and can very well be passed even after acquittal of delinquent employee in criminal case.

I have heard learned counsel for the parties and perused the paper book.

Indisputably, based on the allegation of theft, independent Departmental Enquiry was initiated against the petitioner and after giving full opportunity of hearing to the petitioner, the order imposing penalty of termination/removal has been passed. The Labour Court, while deciding issue No. 1, has also held the Departmental proceedings as valid and appropriate. A bare perusal of the order passed by the Labour Court would reveal, the only question raised by the petitioner at the time of hearing was that the order of imposing punishment of termination/removal is harsh, disproportionate and not that the report of Enquiry Officer is perverse. The Labour Court, taking a liberal view, has held the punishment as harsh, and therefore, modified the order of removal/termination and passed the order, of reinstatement with 50% of backwages. The Industrial Court, after considering the scope and ambit of 107-A of the Act of 1960 in the light of the fact that the petitioner was punished for the theft of 16 brass plates, set aside the order of Labour Court and restored the order passed by the disciplinary authority.

The Supreme Court, in the case of Govt. of A.P. and Others Vs. Mohd. Narsullah Khan, , has held the charge of theft as serious in nature and has held the punishment of dismissal from service as correct and appropriate. The Supreme Court, in the case of Depot Manager, A.P.S.R.T.C. Vs. Raghuda Siva Sankar Prasad, , has held in paragraphs 21 & 22 as under :

"21. Learned Judge of the High Court have also failed to appreciate that once an employee lost the confidence of employer, it would not be safe and in the interest of the Corporation to continue the employee in the service. The punishment, imposed by the management in the facts and circumstances of the case, is not disproportionate and that the punishment of removal from service is the just and reasonable and proportionate to the proved misconduct.

In our view, the theft committed by the respondent amounts to misconduct and, therefore, we have no hesitation to set aside the orders passed by the learned single Judge and also of the Division Bench and restore the order of removal of the respondent from service. When the Labour Court has proved the charges, no interference by the learned single Judge or by the Division Bench of the High Court was called for. In the instant case, the jurisdiction vested with the Labour Court has been exercised judiciously and fairly. In our opinion, the conclusion arrived at by the High Court in ordering reinstatement; continuity of service was shockingly disproportionate to the nature of charges already proved which is in the nature of theft."

Considering the above aspect of the matter, in my opinion, the punishment of termination/removal cannot be said to be disproportionate looking to the seriousness of the charge of theft and the Industrial Court has rightly reversed the order of Labour Court and restored the order passed in Departmental Enquiry.

So far as the other argument advanced by Shri Saxena that as the petitioner has already been acquitted from the charge by the Co-ordinate Bench of this Court in criminal revision No. 7/1998, the order of punishment deserves to be quashed on this count alone is also devoid of merit, inasmuch as, the order of termination/removal has been passed on the allegation of theft by initiating independent Departmental Enquiry and was not based on conviction order passed by the, Criminal Court. In criminal case, proof required is proof beyond reasonable doubt while in domestic enquiry, it is proof on preponderance of probabilities. [Please see The Divisional Controller, KSRTC Vs. M.G. Vittal Rao, , Ram Tawekay Sharma v. State of Bihar and Ors., AIR 2009 SC (Supp) 938 and South Bengal State Transport Corpn. Vs. Swapan Kumar Mitra and Others, .

Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. 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 the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether me findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When me authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of me charge., The Court/Tribunal in its power of judicial review does not act as appellate authority to appreciate me evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If me conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding and mould the relief so as to make it appropriate to me facts of each case.

In the instant case, even the Labour Court has approved the Departmental Enquiry as valid and appropriate and not perverse and had also attained finality for want of challenge.

Considering every aspect of the matter, in my opinion, the order impugned does not suffer from such jurisdictional illegality warranting interference of this Court and the petition is, therefore, liable to be and is hereby dismissed. No order as to costs.