Case BriefsSupreme Court

Supreme Court: Addressing a case of dismissal of a Bank clerk for breaching the trust of a widowed sister-in-law as well as of the bank, the Division Bench of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., held that it was hardly a case for interference either on law or on moral grounds. The Court opined,

“The High Court had applied the test of criminal proceedings to departmental proceedings while traversing the path of requirement of a hand writing expert to be called for the said purpose.”

Backdrop

The dispute in the instant case was with regard to departmental proceedings made by the Indian Overseas Bank against the respondent employee and declaring him guilty on various counts inter alia including breach of duty as a custodian of public money and dishonesty, fraud or manipulation of documents.

The respondent was employed with the appellant-Bank as a clerk cum-cashier. It was on a complaint from the sister-in-law of the respondent, Smt. Meera Srivastava, complainant herein, that the respondent had opened and operated a savings account in the joint name of the respondent and his sister-in-law by forging her signatures, and encashed a demand draft of Rs. 20,000 which was issued to her by Kalyan Nigam Ltd., employer of her deceased husband, who passed away in a road accident, that the departmental proceedings were initiated against the respondent and he was placed under suspension and later on, on charges being proved against him he was dismissed from service.

Award by the Industrial Tribunal

The Industrial Tribunal decided the preliminary issue against the Bank as the Management/Bank had failed to produce original documents and most photocopies of the relevant pages were not readable. It was, thus, concluded that there was violation of the principles of natural justice. However, the Tribunal allowed the Bank to prove the charges against the respondent by adducing evidence. Consequently, the Tribunal opined that the Bank/Management had been successful in establishing all the charges against the respondent. On the issue of quantum of punishment also it was held that the same was commensurate to the charges levelled and proved against the respondent.

Findings of the High Court

However, by the impugned judgment the High Court had held that when the earlier departmental proceedings were found to be violative of the principles of natural justice then no findings vis-a-vis charges 1, 2, 3, 6 & 7 should have been arrived at, based on the plea that the Bank led evidence only in respect of charges 4 & 5. In respect of charges 4 & 5 it was opined that on the request of the respondent the signatures of the complainant should have been got compared with her admitted signatures by an expert and then only a correct conclusion could have been arrived at whether the signatures on the account opening form or the withdrawal form had been forged by the respondent or not and the Tribunal should have refrained from acting like an expert. The High Court held that degree of investigation should have been a standard which is resorted to by a criminal court.

Factual Analysis

Noticeably, while observing the admitted signatures in comparison with the signatures in question from a banker’s eye, the inquiry officer had opined that it could be said that there was absence of similarity. The stand of the complainant was that even the account was opened fraudulently without her ever visiting the bank. Considering that in her cross-examination it was never put to the complainant that she had gone to the Bank to open the account and the account opening form bears her signatures nor was it put to her that she had gone to the Bank to withdraw the amounts of Rs.7,000 and Rs.13,000, the Bench opined,

“We are of the view that the High Court has fallen into an error in coming to the conclusion in the impugned judgment and directing, once again, the matter to be remitted to the Industrial Tribunal to now seek opinion of a hand writing expert.”

The Bench emphasised that at the threshold that there are certain inherent legal limitations to the scrutiny of an award of a Tribunal by the High Court while exercising jurisdiction under Article 226 of the Constitution. Referring to GE Power India Ltd. v. A. Aziz, 2020 SCC Online SC 782, the Bench stated, “if there is no jurisdictional error or violation of natural justice or error of law apparent on the face of the record, there is no occasion for the High Court to get into the merits of the controversy as an appellate court.” That too, on the aspect of an opinion formed in respect of two sets of signatures where the inquiry was held by an officer of the bank who came to an opinion on a bare comparison of the signatures that there was a difference in the same.

Further, the Inquiry Officer had opined while observing the admitted signatures in comparison with the signatures in question, it was not just the ipse dixit of the Inquiry Officer but was based on the deposition of the complainant. She unfortunately lost her husband in an accident. Observing the sorry state of situation, the Bench remarked,

“She unfortunately lost her husband in an accident. The two drafts were received from his employer and those drafts were kept in custody with the respondent, possibly because he was a banker and the elder brother of her deceased husband. Instead of extending the benefits of the same to her, the respondent went on a path of opening an account jointly in his and his sister-in-law’s name, presenting the drafts, and drawing the amounts with appropriation of the same to himself.”

Findings and Conclusion

Referring to a recent judgment in Ashoo Surendranath Tewari v. CBI, (2020) 9 SCC 636, where it had been observed that the standard of proof in departmental proceedings, being based on preponderance of probability, is somewhat lower than the standard of proof in criminal proceedings where the case has to be proved beyond reasonable doubt, the Bench opined that the evidence was enough to implicate the respondent and  the High Court had applied the test of criminal proceedings to departmental proceedings while traversing the path of requirement of a hand writing expert to be called for the said purpose.

With regard to opinion of the High Court that only charges 4 & 5 could really have been gone into by the Industrial Tribunal, which required further evidence of a hand writing expert and that no evidence was led for other charges, the Bench held that view was neither the correct approach nor borne out of the record as, the Bench said,

“Evidence was led. Even earlier, the material in respect of other charges emanates from the record of the bank which shows the conduct of the respondent which are apparent from the manner of framing of the charges themselves and the material led in support thereof. Thus, even the aspect of the other charges could not have been brushed aside in the manner it purports to. “

In the light of above the Bench held that the respondent, a clerk-cum-cashier which was a post of confidence had breached that confidence along with the trust of a widowed sister-in-law, making it hardly a case for interference either on law or on moral grounds. Accordingly, the punishment imposed on the respondent was held to be appropriate as the conduct established of him did not entitle him to continue in service. The impugned judgment was set aside and the challenge to the award of the Industrial Tribunal was repelled.

[Indian Overseas Bank v. Om Prakash Lal Srivastava, 2022 SCC OnLine SC 62, decided on 19-01-2022]


*Judgment by: Justice Sanjay Kishan Kaul


Kamini Sharma, Editorial Assistant has put this report together 


Jharkhand High Court
Case Briefs

Jharkhand High Court: Deepak Roshan, J., partly allowed the challenge against the order of the Disciplinary Authority whereby the petitioner had been dismissed from service on account of dereliction of duty. Noticing that the charges framed against the petitioner were vague the Bench stated,

“…even if the delinquent does not take the defence or make a protest that the charges are vague; that does not save the enquiry from being vitiated for the reason that there must be fair play in action.”

The brief facts of the case were that the petitioner was appointed on compassionate ground as Constable. While the petitioner was posted at Dhanbad, a departmental proceeding was initiated against alleging dereliction of duty. The charges were framed against the petitioner which inter alia, alleged unauthorized leave for 2 days, and that the petitioner was a habitual drunker and frequently threatens the superior officer resulting in dereliction of duty and insubordination.

The enquiry proceeding was conducted wherein the charges were declared proved and resultantly, the petitioner was dismissed from service. Though the petitioner had challenged the impugned order, both the superior Authorities rejected the claim of the petitioner for reinstatement.

After going through the enquiry report it the Bench observed that the only proved part of the charge was that petitioner left the place of work in the evening on 22-09-2009 without any permission of leave or without any information to the superior officer which is not permissible in the respondents department. However, the other parts of the charge that he usually remains under the influence of liquor could not be proved in a sense that the same was vague in nature. The Bench remarked,

“In the entire charge-sheet there is no reference, whatsoever, as to when the petitioner was under the influence of liquor. On the one hand, neither any medical test was done nor the respondent has done earlier any medical examination to find out as to whether the petitioner was ever under the influence of liquor.”

Similarly, the last part of the charge that after taking liquor the petitioner frequently threatens the superior officer; was also vague, inasmuch as, there was no date or the name of the officer to whom the petitioner had ever assaulted under the influence of liquor.

Relying on the decisions of the Supreme Court in State of A.P. v. S. Sree Rama Rao, AIR (1963) SC 1723, Sawai Singh v. State of Rajasthan, (1986) 3 SCC 454 and in Anil Gilurker v. Bilaspur Raipur Kshetriya Gramin Bank, (2011) 14 SCC 379, the Bench stated that the law is well settled that even in a domestic enquiry, the charges must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be obligatory even if the delinquent does not take the defence or make a protest that the charges are vague; that does not save the enquiry from being vitiated for the reason that there must be fair play in action, particularly, in respect of an order involving adverse or penal consequences.

Further, noticing that during pendency of appeal before the Director General of Police; a recommendation was made by the ADGP (Headquarter) to inflict minor punishment for two days absent such as stoppage of increment etc., the Bench opined that the such recommendation strengthened the fact that even the respondent authorities were aware that the charges were vague and only for absence of two days of dereliction of duty, termination of service was highly excessive.

Consequently, the impugned order of termination was quashed and set aside along with the appellate order and the revisional order. The petitioner was directed to be reinstated in service and the matter was remitted back to the respondent authority to pass a fresh order only on the quantum of punishment for unauthorised absent from duty. [Ranjit Kumar v. State of Jharkhand,  2021 SCC OnLine Jhar 893, decided on 02-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Amritansh Vats, Advocate

For the State: Ashok Yadav, Advocate

Case BriefsSupreme Court

Supreme Court: While hearing the appeal filed by Maharashtra SRTC, the Division Bench comprising of M. R. Shah* and B. V. Nagarathna, JJ., held that punishment of dismissal from service per se cannot be said to be an unfair labour practice for being disproportionate to the misconduct proved.

Background

On 23-10-1992 when the respondent, a bus driver employed by the MSRTC, was driving a bus, he met with an accident with a jeep coming from the opposite direction. The allegation against the respondent-driver was that instead of taking the bus to the left side, he took the bus to the extreme right and as a result, the jeep and the bus collided. The accident resulted in death of four passengers on the spot and six passengers were seriously injured. The impact of the collision was so high that the jeep was pushed back by about 25 feet. The driver of the jeep also sustained injuries. The respondent was subjected to disciplinary enquiry, and was consequently dismissed from service. A criminal case was also lodged against the driver under Section 279 of IPC for negligent and rash driving. However, he came to be acquitted.

Findings of the Labour Court and Industrial Tribunal

The Labour Court upheld the order of dismissal. In a revision application the Industrial Tribunal considering the acquittal of the respondent in criminal proceedings and observing that the drivers of both the vehicles were negligent (contributory negligence), the Industrial Tribunal exercised powers under item 1(g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971; and held that the order of dismissal was disproportionate to the misconduct proved. Hence, the Tribunal ordered reinstatement of the respondent without back wages but with continuity of service.

Dismissal by the High Court

The order of the Tribunal was challenged before the High Court by the appellant-MSRTC. The High Court, by the impugned order and judgment had only dismissed the appeal but also directed the appellant to pay to the respondent back wages with effect from 01-11-2003 to 31-05-2018 i.e. which was the date of his superannuation. The High Court also directed that the respondent should also be entitled to retiral benefits on the basis of continuity of service.

Factual Analysis

Noticing that while acquitting the accused–respondent the Criminal Court observed that the prosecution failed to prove that the incident occurred due to rash and negligent driving of the accused-respondent only and none else, and acquitted the respondent by classifying the case as one of a contributory negligence, the Bench stated that even if it was assumed that even driver of the jeep was also negligent, that did not that the respondent was not negligent at all. Hence, it could not absolve him of the misconduct.

Further, the Criminal Court acquitted the respondent on the hostility of the witnesses; the evidence led by the interested witnesses; lacuna in examination of the investigating officer; panch for the spot panchnama of the incident, etc. On the contrary in the departmental proceedings the misconduct of driving the vehicle rashly and negligently which caused accident and due to which four persons died has been established and proved. Therefore, the Bench said,

“An acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objectives.”

Therefore, the Bench concluded that the Industrial Court had erred in giving much stress on the acquittal of the respondent by the criminal court.

Whether punishment of dismissal can be said to be an unfair labour practice for being disproportionate to the misconduct proved?

The Bench observed that the Labour Court did not interfere with the order of dismissal by giving cogent reasons and after re-appreciating the entire evidence on record including the order of acquittal passed by the criminal court. However, the Industrial Tribunal interfered with the order of dismissal solely on the ground that punishment of dismissal was disproportionate to the misconduct proved and the same can be said to be to be unfair labour practice as per item 1(g) of Schedule IV of the MRTU & PULP Act, 1971. The Bench stated,

Clause No. 1(g) can only be invoked in a case where it is found that dismissal of an employee is for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment.

However, as per the appellant, the respondent was in service for three years and during three years’ service tenure he was punished four times, therefore, the Bench opined that it could not be said that the order of dismissal was without having any regard to the past record of the service of the respondent. Consequently, the Industrial Court wrongly invoked clause 1(g) of Schedule IV of the MRTU & PULP Act, 1971 as it could not be said that the dismissal of the respondent was for misconduct of a minor or technical character, without having any regard to the nature of the misconduct.

Conclusion

In the backdrop of above, the Bench concluded that the Industrial Court committed a grave error and had exceeded in its jurisdiction while interfering with the order of dismissal passed by the disciplinary authority. Similarly, the impugned judgment of the High Court directing the appellant to pay wages to the respondent also could not have been passed in a petition filed by the appellant. The Bench explained, it was not a petition filed by the workman and the relief granted was beyond the scope and ambit of the controversy before the High Court.

Accordingly, the impugned order and judgment was quashed and set aside and the judgment and Award of the Labour Court was restored. The order of dismissal passed by the disciplinary authority was upheld.

[Maharashtra SRTC v. Dilip Uttam Jayabhay, 2022 SCC OnLine SC 1, decided on 03-01-2022]


*Judgment by: Justice M. R. Shah


Appearance by:

For Maharashtra SRTC: Mayuri Raghuvanshi, Advocate

For the Respondent: Nishanth Patil, Advocate


Kamini Sharma, Editorial Assistant has put this report together


 

Patna High Court
Case BriefsHigh Courts

Patna High Court: Chakradhari Sharan Singh, J., set aside the order of dismissal of a constable who was removed from service in relation to a viral video of him consuming alcohol on duty.

The petitioner, a constable had sought directions for quashing of the impugned order passed by the Superintendent of Police whereby the petitioner was dismissed from service.

The petitioner, at the relevant point of time, was posted as constable (driver) in a Police Station. Allegedly, on 15-09-2018 a video clip had become viral in which the petitioner was seen as consuming alcohol. An enquiry was ordered by the Inspector General of Police,  whereafter, the Sub Inspector of Police conducted an enquiry and found the petitioner guilty of consuming alcohol, and registered the FIR for the offences punishable under Section 30(a) & 37(a) of the Bihar Prohibition and Excise Act, 2016.

Opining that the conduct of the petitioner displayed lack of discipline, irresponsible behaviour and thereby, tarnished the image of the Police, the Disciplinary Authority had ordered dismissal of the petitioner.

Noticing that no specific finding was recorded by the Inquiring Authority based on the evidence adduced during the departmental enquiry that the petitioner was found consuming alcohol and that neither breath analyzer test nor any other scientific test was conducted to establish that the petitioner had consumed alcohol, the Bench opined that the finding of the Inquiring Authority was based on no evidence as nothing was produced to show that the liquid in the glass, which the petitioner was seen to be carrying in the video clip, was alcohol and the bottle located near him was containing alcohol.

Accordingly, the Bench opined that the department miserably failed to bring home the charge against the petitioner that he was consuming alcohol or was in possession of alcohol, in the absence of cogent evidence adduced by the department during the departmental enquiry.  Further, noticing that the enquiry report did not depict any participation of the Presenting Officer though a Presenting Officer was appointed, the Bench was of the view that the impugned decision of the Disciplinary Authority was wholly unjust, illegal, arbitrary and unsustainable.

Consequently, the impugned dismissal order was set aside and the respondent was directed to reinstate the petitioner with all consequential benefits including payment of full back wages for the period during which he remained out of service because of the order of dismissal. [Sonu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2225, decided on 22-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance:

For the Petitioner/s: Raju Giri, Advocate and Santosh Kumar Mishra, Advocate

For the Respondent/s: Manish Kumar, G.P.-4 and Ajay Kumar, A.C. to G.P.-4

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that the decision of the Labour Court should not be based on mere hypothesis and it cannot overturn the decision of the management on ipse dixit. Stating that Labour Court’s jurisdiction under Section 11-A of the Industrial Dispute Act, 1947 although is a wide one but it must be judiciously exercised, the Court said,

“Judicial discretion, it is trite, cannot be exercised either whimsically or capriciously. It may scrutinize or analyse the evidence but what is important is how it does so.”

Factual Background

  • The respondent-­workman was dismissed from his services by the Standard Chartered Bank for drunkenness within the premises of the appellant-Bank and for manhandling and assaulting the senior officers and also hurling abuses at the management. The alleged delinquency had been committed on 12th January,1988.
  • The enquiry officer after holding enquiry in terms of the Bipartite Settlement and after due compliance of the principles of natural justice held the charges proved against the delinquent respondent and the disciplinary authority after due compliance, confirmed the finding recorded by the enquiry officer and punished him with the penalty of dismissal from service by an order dated 22nd August, 1991.
  • The Industrial Tribunal, However, revisited the record of enquiry and apprised the statement of the management witnesses and recorded a finding that the Bank management has “miserably failed” to establish the charges levelled against the respondent-workman and hence, set aside the order of dismissal from service and directed the appellant to reinstate the respondent-workman in service with full back wages, seniority and all the consequential   benefits attached to the post by its Award dated 14th September, 2006.
  • The High Court also upheld the said order.
  • The respondent-workman had attained the age of superannuation on 31st January, 2012 and during the period of litigation, he has throughout been paid his last wages drawn in terms of Section 17¬B of the Act 1947. The respondent-workman had been paid around Rs. 57 Lakhs.
  • The Supreme Court had, on 27th February, 2015, stayed the payment of back wages.

Analysis

It was argued that after the domestic enquiry was held to be fair and proper, the Tribunal has a limited scope to interfere with the findings recorded in the domestic enquiry and unless the finding is perverse and not supported by a piece of evidence, it was not open for the tribunal to interfere within the scope of Section 11¬A of the Industrial Disputes Act, 1947,

The Court noticed that once domestic enquiry was held it to be fair and proper, the Tribunal had a very limited scope to interfere in the domestic enquiry to the extent as to whether there is any apparent perversity in the finding of fact which has been recorded by the enquiry officer in his report of enquiry obviously, based on the evidence recorded during the course of enquiry and as to whether the compliance of the Bipartite Settlement which provides the procedure of holding enquiry is violated or the punishment levelled against the workman commensurate with the nature of allegation proved against him. However, if the punishment is grossly disproportionate, the tribunal will always be justified to interfere by invoking its statutory power under Section 11-A of the Act 1947.

“The scope of judicial review in the matter of domestic enquiry is to examine whether the procedure in holding domestic enquiry has been violated or the principles of natural justice has been complied with, or any perversity in the finding of guilt recorded during the course of domestic enquiry has been committed.”

The Court noticed that the Tribunal has converted itself into a Court of Appeal as an appellate authority and has exceeded its jurisdiction while appreciating the finding recorded in the course of domestic enquiry and tested on the broad principles of charge to be proved beyond reasonable doubt which is a test in the criminal justice system and has completely forgotten the fact that the domestic enquiry is to be tested on the principles of preponderance of probabilities and if a piece of evidence is on record which could support the charge which has been levelled against the delinquent unless it is per se   unsustainable or perverse, ordinarily is not to be interfered by the Tribunal, more so when the domestic enquiry has been held to be fair and proper.

The Court, hence, held that the Tribunal has completely overlooked and exceeded its jurisdiction while interfering with the finding recorded during the course of enquiry in furtherance of which, the respondent was dismissed from service and the High Court has also committed a manifest error while passing the judgment impugned.

However, looking to the peculiar facts of this case where the respondent-workman had been paid Rs.57,16,517.72 and had attained the age of superannuation on 31st January, 2012, stay was granted by this Court in reference to back wages by order 27th February, 2015, while upholding the order of penalty of dismissal from service dated 22nd  August, 1991 passed by the authority in the domestic enquiry, the Court directed that no recovery shall be made in reference to the payment which has been made over to the workman in the interregnum period.

[Standard Chartered Bank v. RC Srivastava, 2021 SCC OnLine SC 830, decided on 29.09.2021]


*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Case BriefsSupreme Court

Supreme Court: The bench of R. Subhash Reddy* and Sanjiv Khanna, JJ has held that reinstatement with full back wages is not automatic in every case, where termination/dismissal is found to be not in accordance with procedure prescribed under law.

The ruling came in the matter where,

  • A Clerk-cum-Cashier was dismissed by the Allahabad Bank, alleging his involvement in the incident relating to burning of relevant Bank records.
  • The respondent was appointed in the Bank as Clerk–cum– Cashier on 23.09.1985 and he was placed under suspension on 13.02.1989 and dismissed from service vide Order dated 22.08.1991.
  • The Industrial Tribunal–cum–Labour Court found that though there was a strong suspicion, but there was no sufficient evidence to prove his misconduct to dismiss from service. However, on the ground that a case is made out by the management of loss of confidence, ordered payment of compensation of Rs.30,000/- in lieu of reinstatement.
  • The respondent, aggrieved by the award of the Industrial Tribunal–cum–Labour Court, seeking reinstatement with back wages, carried the matter to the High Court wherein it was held that suspicion, however, high may be, can under no circumstances be held a substitute to legal proof. The High Court, hence, directed reinstatement with all consequential benefits.
  • The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings, the respondent – workman had attained age of superannuation.

Considering the aforementioned facts and circumstances, the Supreme Court held,

“Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court.”

Noticing that reinstatement with full back wages is not automatic in every case, where termination / dismissal is found to be not in accordance with procedure prescribed under law, the Court held that in the present case, the ends of justice would be met by awarding lump sum monetary compensation. It, hence, directed payment of lump sum compensation of Rs.15 lakhs to the respondent, within a period of eight weeks, failing which, the respondent will be entitled for interest @ 6% per annum, till payment.

[Allahabad Bank v. Krishan Pal Singh, 2021 SCC OnLine SC 751, decided on 20.09.2021]

______________________________________________

Appearances before the Court:

For Bank: Advocate Rajesh Kumar Gautam

For Respondent: Advocate Rakesh Taneja


*Judgment by: Justice R. Subhash Reddy

Know Thy Judge| Justice R. Subhash Reddy

Case BriefsHigh Courts

Punjab and Haryana High Court: While deliberating over a matter of wrongful termination of a public servant’s services, Anil Kshetarpal, J., allowed the writ petition granting relief to the petitioner and observed that, “Mere observation that the departmental inquiry at this stage does not appear to be justified is not sufficient to invoke powers under Clause (b) of the 2nd Proviso to Article 311(2) of the Constitution of India.”

The factual matrix in the present matter is such that the present writ petition has been filed by the petitioner under Article 226 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing of order dated 04-03-2020 passed by the respondent, dismissing the petitioner from service under Clause (b) of the 2nd Proviso to Article 311(2) of the Constitution of India. The petitioner was dismissed from the post of Constable in Punjab police basis his involvement in two grave offences. The first offence is that of rape and subsequent blackmail and FIR No. 14 had been registered in connection with the same. The second offence dates back to the time when the police party went in for the arrest of the petitioner when the petitioner ran away after he was apprehended. Protesting the same, a group of villagers entered into a scuffle with the police personnel and indulged in vandalism. As a result of the attack, a police official endured serious physical harm and another’s wallet and id card was snatched from him.

As a result of the above-stated acts, the respondent invoked Clause (b) of the 2nd Proviso to Article 311(2) of the Constitution of India to remove/dismiss the petitioner from service while doing away with the requirement of holding a departmental inquiry.

Counsel for the petitioner, Abhimanyu Tiwari has contended that the respondent did not state the reasons behind the act of dispensing with the requirement of holding inquiry and hence the order is unsustainable in the eyes of law. Several judgments were cited by him in order to substantiate his claim including that of Union of India v. Tulsi Ram Patel, (1985) 3 SCC 398 and Reena Rani v. State of Haryana, (2012) 10 SCC 21.

Counsel for the respondent, Anu Chatrath, in his defence has cited the judgments passed in Kuldip Singh v. State of Punjab, (1996) 10 SCC 659 and Chandigarh Administration, U.T. Chandigarh v. Ajay Manchanda, (1996) 3 SCC 753.

The question of law that came before this Court for resolution is-

“Whether in absence of sufficient reasons recorded in writing dispensing with the requirement of holding inquiry in the alleged misconduct of employee by the authority, order of dismissal/removal from service of employee, passed in exercise of the powers under Clause (b) of the 2nd Proviso to Article 311(2) of the Constitution of India is sustainable?”

The Court examined the order dated 04-03-2020 carefully and observed that it is evident that no reason whatsoever has been recorded as to why holding of the inquiry is not reasonably practicable. The only thing mentioned is that “it does not seem justified to conduct departmental inquiry at this stage”. The court is of the opinion that Article 311 of the Constitution has been insufficiently complied with.

Article 311 clearly states that authority is empowered to dismiss or remove a person or to demote him but the reasons as to why it’s not reasonably practicable to conduct an inquiry have to be recorded in writing. In the present case, no such reasons have been stated by the respondents.

In both the FIR’s where the petitioner has been accused, it has to be established beyond a reasonable doubt that the accused committed those acts and that the concerned police department left no stone unturned to unearth the truth.

The Court is of the opinion that both the cases cited by the respondent’s counsel are irrelevant in the present case’s perspective.

In view of all the above, the Court allowed the writ petition directing the reinstatement of petitioner along with consequential benefits. However, the respondent is free to initiate any departmental inquiry with respect to the petitioner’s misconduct.[Sarabjit Singh v. State of Punjab,  2020 SCC OnLine P&H 1404, decided on 01-09-2020]

Case BriefsSupreme Court

Supreme Court: In a 2:1 verdict, the 3-judge bench of Arun Mishra, MR Shah and Ajay Rastogi, JJ has held that the disciplinary authority has powers to impose the penalty of dismissal/major penalty upon the employee even after his attaining the age of superannuation if the disciplinary proceedings were initiated while the employee was in service in view of the Conduct, Discipline and Appeal Rules.

Issues before the Court

The Court was deciding the below mentioned issues and while all 3-judge agreed on the answer to the first Issue, Justice Rastogi, disagreed with the majority ruling in the second issue.

  • Issue 1: Whether is it permissible in law for the employer to withhold the payment of gratuity of the employee, even after his superannuation from service, because of the pendency of the disciplinary proceedings against him?
  • Issue 2: Where the departmental enquiry had been instituted against an employee while he was in service and continued after he attained the age of superannuation, whether the punishment of dismissal can be imposed on being found guilty of misconduct in view of Rule 34.2 of the Conduct, Discipline and Appeal Rules, 1978 (CDA Rules) made by Mahanadi Coalfield Limited?

Issue 1:

All 3 judges unanimously held it is permissible for the employer to withhold gratuity even after retirement/superannuation during pendency of the disciplinary proceedings as per Rule 34.3 of the CDA Rules.

Rule 34.3 of the CDA Rules permits withholding of the gratuity amount during the pendency of the disciplinary proceedings, for ordering recovering from gratuity of the whole or part of any pecuniary loss caused to the company if have been guilty of offences/misconduct as mentioned in subsection 6 of Section 4 of the Payment of Gratuity Act, 1972 or to have caused pecuniary loss to the company by misconduct or negligence, during his service. It further makes clear that Rule 34.3 for withholding of such a gratuity would be subject to the provisions of Section 7(3) and 7(3A) of the Payment of Gratuity Act, 1972 in the event of delayed payment in the case of an employee who is fully exonerated. There is no inconsistency between sub-section 6 of Section 4 of the Payment of Gratuity Act and Rule 34.3 of the CDA Rules.

Also, once it is held that a major penalty which includes the dismissal from service can be imposed, even after the employee has attained the age of superannuation and/or was permitted to retire on attaining the age of superannuation, provided the disciplinary proceedings were initiated while the employee was in service, sub-­section 6 of Section 4 of the Payment of Gratuity Act shall be attracted and the amount of gratuity can be withheld till the disciplinary proceedings are concluded.

Issue 2:

Justice Shah, for himself and Justice Mishra

The punishment which is prescribed under Rule 27 of the CDA Rules, minor as well as major, both can be imposed. Apart from that, recovery can also be made of the pecuniary loss caused as provided in Rule 34.3 of the CDA Rules, which takes care of the provision under  sub­section (6) of Section 4  of the Payment of Gratuity Act, 1972. The recovery is in addition to a punishment that can be imposed after attaining the age of superannuation. The legal fiction provided in Rules 34.2 of the CDA Rules of deemed continuation in service has to be given full effect.

Considering the provisions of Rules 34.2 and 34.3 of the CDA Rules, the inquiry can be continued given the deeming fiction in the same manner as if the employee had continued in service and appropriate punishment, including that of dismissal can be imposed apart from the forfeiture of the gratuity wholly or partially including the recovery of the pecuniary loss as the case may be.

“Several service benefits would depend upon the outcome of the inquiry, such as concerning the period during which inquiry remained pending. It would be against the public policy to permit an employee to go scot­free after collecting various service benefits to which he would not be entitled, and the event of superannuation cannot come to his rescue and would amount to condonation of guilt. Because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation, and appropriate punishment can be imposed.”

Further, various provisions of the Payment of Gratuity Act, 1972 do not come in the way of departmental inquiry and as provided in Section 4(6) of Gratuity Act and Rule 34.3 of CDA Rules in case of dismissal gratuity can be forfeited wholly or partially, and the loss can also be recovered. An inquiry can be continued as provided under the relevant service rules as it is not provided in the Payment of Gratuity Act, 1972 that inquiry shall come to an end as soon as the employee attains the age of superannuation.

The Gratuity Act does not deal with the matter of disciplinary inquiry, it contemplates recovery from or forfeiture of gratuity wholly or partially as per misconduct committed and does not deal with punishments to be imposed and does not supersede the Rules 34.2 and 34.3 of the CDA Rules. The mandate of Section 4(6) of recovery of loss provided under Section 4(6)(a) and forfeiture of gratuity wholly or partially under Section 4(6)(b) is furthered by the Rules 34.2 and 34.3. If there cannot be any dismissal after superannuation, intendment of the provisions of Section 4(6) would be defeated.

Justice Rohatgi, dissenting

After conclusion of the disciplinary inquiry, if held guilty, indeed a penalty can be inflicted upon an employee/delinquent who stood retired from service and what should be the nature of penalty always depends on the relevant scheme of Rules and on the facts and circumstances of each case, but either of the substantive penalties specified under Rule 27 of the CDA Rules, 1978 including dismissal from service are not open to be inflicted on conclusion of the disciplinary proceedings and the punishment of forfeiture of gratuity commensurate with the nature of guilt may be inflicted upon a delinquent employee provided under Rule 34.3 of CDA Rules, 1978 read with sub­section (6) of Section 4 of the Payment of Gratuity Act, 1972.

[Chairman-­cum­-Managing Director, Mahanadi Coalfields Limited v. Rabindranath Choubey, 2020 SCC OnLine SC 470 , decided on 27.05.2020]

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of L. Narayana Swamy, ACJ and P.S. Dinesh Kumar, J., allowed a writ appeal filed against order directing reinstatement of a driver in service, who had been not reported to duty for almost two years.

Respondent herein, who was working as a driver with Bengaluru Metropolitan Transport Corporation (BMTC), was suspended from service but suspension was revoked after sometime. Despite revocation of suspension, respondent did not report to duty and was issued a call notice. However, he still remained absent. Disciplinary authority framed and sent imputation of charges but the same was not reverted to by the respondent. A domestic enquiry was conducted after serving notice to respondent. Since he did not appear even in these proceedings, he was proceeded against ex-parte and dismissed from service. Respondent raised a dispute before the conciliation officer but upon failure of conciliation proceedings, he approached the Labour Court which dismissed the reference. In a writ petition filed before the learned Single Judge, the order of respondent’s dismissal was set aside. Aggrieved thereby, the instant petition was filed.

The Court observed that a High Court while exercising power under Article 227 of the Constitution of India, shall not ordinarily correct mere error of facts or law unless the error is shown to be apparent on the face of the record or is based on clear ignorance or utter disregard to the provisions of law. Further, a High Court shall not convert itself into a Court of appeal and indulge in re-appreciation of evidence unless great injustice is demonstrated.

It was noted that the petitioner chose not to report to duty even after two years of revocation of suspension. Relying on the judgment in North-Eastern Karnataka Road Transport Corporation v. Ashappa, (2006) 5 SCC 137 where it was held that remaining absent for a long time cannot be considered minor misconduct; it was held that the impugned order was not sustainable in law.[BMTC v. S. Ganesh, 2019 SCC OnLine Kar 243, Order dated 01-02-2019]

Case BriefsHigh Courts

Manipur High Court: A Single Judge Bench comprising of KH. Nobin Singh, J., dismissed an application filed for dismissal of Election Petition on the ground that it violates Section 100 of Representation of People Act, 1951 where grounds for declaration of election as void are given.

The applicant filed this application for dismissal of election petition filed by the respondent raising flaws in it. In the petition, the respondent contended that the applicant in his affidavit filed along with nomination paper had not given complete information. The applicant did not mention anything about the FIR filed against him. He also left many columns blank i.e. incomplete form and the Returning Officer could not have accepted the nomination. Whereas the applicant defended himself by stating that in one of the cases filed against him he had already been discharged. The allegation which the respondent had accused of were misconceived and unfounded which require strict proof. It was also submitted that RO of 4-Kshetrigao Assembly Constituency had accepted all nomination papers in the presence of respondent during which the respondent made no objection but now that he was not elected the same process had been put into scrutiny. The applicant opposed election petition on the ground that it does not contain material facts as required under Section 83(1)(a).

The High Court was of the view that Section 83(1)(a) which states that an election petition should contain material facts on which petitioner relies had been substantially complied with and election petition cannot be stopped at this stage. Therefore, the application was devoid of merit and was dismissed. [Nahakpam Indrajit Singh v. Md. Amin Shah,2018 SCC OnLine Mani 115, order dated 17-09-2018]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of Meenakshi Madan Rai, Acting CJ. dismissed a petition filed for condonation of 50 days delay in filing appeals against the order of Motor Accident Claims Tribunal whereby compensation was awarded to the claimants.

The MACT (West Sikkim) had awarded certain amount of compensation to the respondent claimants. The appeal was preferred thereagainst by the petitioner but only after a delay of 50 days. The petitioner filed the instant petition for condonation of such delay citing various reasons. The High Court, however, was not inclined to allow the petition and condone the delay. The High Court referred to the Supreme Court decision in Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649. The following principles were, inter alia, reiterated by the High Court which is to be kept in mind while deciding a petition for condonation of delay:

  • Court to be satisfied that the appellant was prevented by sufficient cause in preferring the appeal on time.
  • Appellant had to put forth bona fide grounds for delay besides establishing that the delay was not caused due to negligence.
  • Length of delay is not a consideration. Each case is distinguishable from the next.
  • ‘Sufficient Cause’ should be given a liberal interpretation to ensure that substantial justice is done.
  • It has to be kept in mind that expiration of period of limitation gives rise to a right in favour of a decree-holder; this right is accrued should not be lightly disturbed.

In the instant case, the High Court held that in the gamut of facts and circumstances put forth for the delay, it was but relevant to opine that the petition was filed with a nonchalant attitude reflecting negligence, inaction and lack of bona fides, and being devoid of merits. The petition, thus, did not deserve indulgence of the Court. Consequently, the Court was not inclined to exercise jurisdiction in favour of the petitioner. Accordingly, the petition was dismissed. [Shriram General Insurance Co. Ltd. v. Dik Bir Damai,2018 SCC OnLine Sikk 190, Order dated 17-09-2018]

Case BriefsHigh Courts

Bombay High Court: Dismissing an appeal against the order of a probation committee, a Bench comprising of RM Savant and SV Kotwal, JJ. upheld the order of discharging a lower court Judge from service for reportedly turning up late at work on several occasions and violating other judicial norms. In this case, an anonymous complaint was received by the Registry of Court that the petitioner, who was a probationer Civil Judge Junior Division and Judicial Magistrate First Class at Ulhasnagar, was reporting to work late daily and beginning his court between 11.30 am -12 noon. Other allegations against him were that he used to chit chat with lawyers which thereby undermined the confidence of the litigants. It was also alleged that the petitioner discussed about other Judges in the presence of lawyers and carried out court work from his chamber.

Surprise checks were conducted based on the complaint and it was found that the petitioner was missing from work on the first day of the surprise check. It was also established that he was absent for 6 days each in the last 3 months. Subsequently, the Principal District Judge left disparaging remarks with regards to the conduct, character and integrity of the petitioner and he was subsequently dismissed. The petitioner’s lawyer contended that the comments made against her client were stigmatic in nature and were based on unsubstantiated allegations. She also stated that the petitioner was not given an opportunity of hearing to present his case before the probation committee.

After hearing arguments from both sides, the Court quoting the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCC 593 held that having regard to the allegation or suspicion of misconduct that the master/employer may have against the probationer, the employer may not choose to hold an enquiry to discharge the probationer whom the employer is not desirous of keeping. The Court further stated that even if strong language was used by the Principal District Judge against the petitioner, the probation committee still did not find him suitable for continuation of service. [Girish Chandrakant Gosavi v. Chief Secretary, Law and Judiciary Department, 2018 SCC OnLine Bom 939, order dated 03-05-2018]

Case BriefsSupreme Court

Supreme Court: In the matter where a CRFP constable, who was dismissed from services for consuming liquor and quarrelling with civilians, had contended that the punishment was disproportionate, the Court held that when a member of the disciplined force deviates to such an extent from the discipline and behaves in an untoward manner which is not conceived of, it is difficult to hold that the punishment of dismissal as has been imposed is disproportionate and shocking to the judicial conscience.

In the present case the respondent had left the campus without prior permission, proceeded to the market, consumed liquor and quarrelled and the same had been proved. However, the respondent had contended that even if the charges have been proven, the punishment of dismissal in the obtaining factual matrix is absolutely harsh and shocking to the conscience.

Referring to the case of Union of India v. Dwarka Prasad Tiwari, (2006) 10 SCC 388, where it was held that unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference, the bench of Dipak Misra and N.V. Ramana, JJ said that as a member of the disciplined force, the respondent was expected to follow the rules, have control over his mind and passion, guard his instincts and feelings and not allow his feelings to fly in fancy. [Union of India v. Diler Singh, 2016 SCC OnLine SC 647, decided on 30.06.2016]