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Judgment
G. Bikshapathy, J.—In the present Writ Petition the orders passed by the 3rd respondent/management dated: 15-4-1991 discharging the petitioner from service are assailed.
Originally, there existed Adoni Cotton Mills at Adoni. The petitioner worked in the said Mills from 1957 to 1966. However, the said Milt was closed and subsequently it was taken over by the National Textiles Corporation, a Govt. of India Undertaking and it started functioning in the name and style of Ananthapur Cotton Mills from 1976. On 18-4-1981, the petitioner was discharged from the service and the said order was challenged by the petitioner in W.P.No. 4591 of 1981 and the same was dismissed on 10-3-1983. However, the Appeal filed by the petitioner in W.A.No. was allowed on 24-6-1987. The SLP filed by the management was also dismissed. Therefore, finally, the petitioner was reinstated into service on 2-8-1988. While so, he was transfered to Ananthapur Unit on 9-6-1989. It is the case of the petitioner that the post in which he was working at Adoni i.e. Shift Incharge and he was not posted in the same designation and post in Ananthapur and the Management was trying to victimise him for his Trade Union activities. A charge sheet dated 15-9-1990 was issued to the petitioner alleging the misconduct namely leaving the headquarters without prior permission and absence without leave. Thereafter, an enquiry was conducted and finally he was discharged from service on 15-4-1991 though the petitioner filed appeals to the competent authority, there was no orders in favour of the petitioner. Hence, the petitioner has filed this Writ Petition assailing the orders of his discharge.
The learned counsel for the petitioner Mr. Jayaprakash Rao submits that the disciplinary proceedings initiated against the petitioner are wholly biased and a false charge was framed against him as he succeeded in earlier litigation and only with a view to take revenge against the petitioner, the management has foisted a false case against him and finally discharged him from service. It is also his grievance that the posting and transfer to Anantapur not as Shift Incharge is also yet another indication of victimisation and unfair labour practise. I am afraid, I can not got into these aspects. Since, these are pure questions of fact and they cannot be adjudicated by this court under Article 226 of the Constitution of India.
Secondly, the learned counsel for the petitioner submits that the findings of the Enquiry Officer are wholly perverse and therefore, the findings have to be set aside.
The learned senior counsel for the respondents submit that a regular charge sheet was issued to [he petitioner and an enquiry was conducted, the petitioner was given easy opportunity to defend his case. Considering the material on record, the Enquiry Officer found him guilty of the charges. Therefore, he submits that there is neither infraction of standing orders nor principles of natural justice. Hence, the finding rendered by the Enquiry Officer is quite valid and legal. I have gone through the findings of the Enquiry Officer and find that the eloberate enquiry has been conducted by the Enquiry Officer. I find that there is no infirmity in the findings of the Enquiry Officer.
It is lastly urged by the learned counsel for the petitioner that the punishment is too harsh and disproportionate to the gravity of the misconduct alleged against the petitioner. He submits that u/s 11A of the Industrial Disputes Act, this court can mould the relief and can set aside the orders of punishment and grant appropriate reliefs under Article 226 of the Constitution of India. This proposition has been seriously disputed by the learned counsel for the Respondents Sri E. Manohar. He submits that the jurisdiction of this Court u/s 226 is very limited and that it cannot sit over the actions of the management as if an appellate authority. Therefore, he submits that this ground has no leg to stand.
7 In view of the proposition laid down by the Supreme Court, it is now made clear, it is within the jurisdiction of this Court to subject the disciplinary proceedings to judicial review and interfered with the proceedings, if the court finds that there was violation of conduct Rules if there is infraction of principles of natural justice. But, however, while coming to the aspect of punishment, it is wholly vested with the disciplinary authority. 11 is now settled by the Supreme Court that even if the Court holds that the punishment as imposed on the employee is wholly unwarranted and unconscionable, yet that would not empower the Courts to reduce the punishment and impose a different punishment. The exceptions to the proposition have been carved out by the Division Bench of this Court in State Bank of Hyderabad, Gunfoundry, Hyderabad and Others Vs. V.K. Gadgil, , which are extracted below:
"The following principles can be deduced :
(1) In exercise of jurisdiction under Article 226 of the Constitution of India, the power of the High Court while considering the question of proportionality of punishment in service matters, is one of judicial review which is not an appeal from decision but a review of the manner In which the decision was made. If the punishment awarded by the disciplinary authority is one, which, having regard to the rules could be imposed for the proved misconduct, the Court will not go into the sufficiency or otherwise of the punishment awarded by the authority. However, there are three exceptions to this rule:
(i) Where the punishment imposed is mala fide or so disproportionate as to shock the conscience of the Court;
(ii) Where the punishment imposed falls under Clause (a) of the Second proviso to Article 311 of the Constitution; and
(iii) Where the punishment imposed was passed u/s 11-A of the Industrial Disputes Act.
(2) Whether the impugned punishment is so disproportionate as to shock the conscience of the Court, is a question of fact/ which has to be decided on the facts of each case, having regard to the gravity of the misconduct, nature of the duties discharged by the delinquent officer, the position held by him and the nexus between the official and the misconduct. It is neither practicable nor desirable to lay down as to when a punishment can be said to be shocking the judicial conscience;
(3) Whether the proved misconduct is a substantial misconduct or a trivial misconduct, is a matter which can be examined by the High Court; and where the disciplinary authority proceeded on the assumption that the misconduct was a substantial misconduct where as in fact it was found to be only a trivial misconduct, the High Court will be well within its bounds to quash the impugned punishment as one not authorised by law. In a case to which exception (1) to Rule (1) or Rule (2), mentioned above, is applicable, the appropriate course for the Court will be to remit the matter to the disciplinary or the appellate authority, as the case may be, for passing fresh order or punishment commensurate with the gravity of the charges proved but not to substitute a lesser punishment which in its opinion, is just and proper"
Therefore, it is to be considered whether the punishment imposed on the petitioner is commensurate with the gravity of misconduct committed by him.
It is not in dispute that the petitioner was issued with the charge sheet dated: 15-9-1990 alleging that the petitioner was absent without leave and he left the headquarters without prior permission. As can be seen from the charge sheet dated: 15-9-1990 that he was absent from 10-9-1990. It is also found that the petitioner worked only for 109 days during the period from June, 1989 to September, 1990. The explanation to this is mat the petitioner was sick for some time and that the management adopted revengeful attitude for his success in the Writ Petition and therefore this is a case where the punishment has been unduly magnified. The learned counsel for the petitioner thus submits that even assuming that the charges are held proved, the punishment of discharge from service is not appropriate.
The learned counsel for the management relies on the judgment of the Supreme Court in State of U.P. and others Vs. Ashok Kumar Singh and anothers, . In the said case, a Police Constable was removed from the service after departmental enquiry for unauthorised absence. The Tribunal declines to interfere with punishment. However, in the Writ Petition, the High Court while concurring with the findings recorded on the charges levelled on the delinquent employee set aside the orders of dismissal and re-instated the employee with an observation that it would be open for the department to impose any minor punishment Further, the High Court granted 1/4th of the back-wages. The Supreme Court while allowing the appeal filed by the State of U.P. held that the High Court exceeded its jurisdiction in modifying the punishment. While concurring the finding of the Tribunal on facts, the Supreme Court held:
"In the present case the only charge against the petitioner was that he absented himself from duty for long periods although it was his case that he applied for grant of leave. Even if it is assumed that the petitioner, against whom there appears to be no charge of misconduct of grave nature, is proved his absence from duty would not amount to such a grave charge for which the extreme penalty of dismissal may be imposed. In view of the fact that the petitioner has offered not to claim arrears of salary as well as the assurance (Sic) this Court that he would discharge his duties faithfully and sincerely this Court is of the view that extreme penalty imposed against the petitioner does not commensurate with the gravity of the charge, hence this writ petition deserves to succeed on this point However, it will be open for the opposite parties to impose any minor punishment against the petitioner.
In view of what has been indicated here in above the writ petition succeeds. The order of dismissal passed against the petitioner contained in Annexure-3 is quashed. The opposite parties will re-instate the petitioner on duty. However, it will be open for the opposite parties to impose any minor punishment upon the petitioner considering the charges. It is made clear that the petitioner will be entitled only to extent one fourth of amount as backwages.
The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court''s observation that ''his absence from duty would not amount to such a grave charge. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that ''the punishment does not commensurate with the gravity of the charge'' especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out"
The Supreme Court on the facts of that particular case, keeping in view the delinquent employee was a Police Constable serving in a disciplinary force took the view that the unauthorised absence cannot be treated as a minor demeanar.
The learned counsel also relied on the judgment of the Supreme Court in Government of Tamil Nadu and another Vs. A. Rajapandian, , wherein the Supreme Court held that:
"the Administrative Tribunal cannot sit as a Court of appeal over the decision based on the findings of the enquiring authority. It is not the function of the Tribunal to review the findings of the enquiring authority which is based on some relevant material and reached different findings than that of the disciplinary authority"
Since, I have held that the findings of the Enquiry Officer cannot be held to be perversed, this decision need not be adverted to.
Admittedly the petitioner was absent continuously from 10-9-1990 by the time, the charge sheet was issued on 15-9-1990. For the absence on earlier occasion, it is his case that he was sick. Considering the nature of the charge, the punishment awarded and the circumstances of the case, I feel that the punishment is arbitrary and it does not conform the gravity of the misconduct. The Supreme Court in Union of India and others Vs. Giriraj Sharma, , in a similar identical circumstances held that the punishment for the absence cannot be treated seriously and lesser punishment could have met the ends of justice. However, in view of later pronouncement of the decision of the Supreme Court, in State Bank of India and Others Vs. Samarendra Kishore Endow and Another, , this Court cannot interfere with the punishment. I am inclined to remind the matter to the disciplinary authority for awarding appropriate punishment. It is in this area, the disciplinary authority is now required to be more cautious and responsible as the Supreme Court has now settled that the disciplinary authority or the appellate authority are the proper fora where the gravity of the punishment has to be weighed with the misconduct. Therefore, it is all the more necessary that the disciplinary authority should exercise the due care and caution while imposing the punishment.
Under these circumstances, I am of the opinion that the punishment of discharge is unwarranted and accordingly, I allow the Writ Petition and set aside the discharge order passed by the management dated 15-4-1991.1 remand the matter to the disciplinary authority (3rd respondent) to pass any other appropriate orders of punishment other than discharge, dismissal or termination of the service of the petitioner. He shall pass the orders within a period of four weeks from the date of receipt of this order. The period between the date of termination and the date of passing a final order shall be treated in accordance with Regulations framed by the 3rd Respondent Corporation. There shall be no order as to costs.