CWJC No.10451 of 2000 ---- In the matter of an application under Articles 226 and 227 of the Constitution of India. --- SUSHIL CHANDRA SRIVASTAVA, son of Sri Kamaldeo Narain, resident of village and P.O. Dihrampur, District- Darbhanga…. … Petitioner Versus 1. THE PRESIDING OFFICER,INDUSTRIAL TRIBUNAL,PATNA. 2. The Bihar State Electricity Board through its Chairman, Vidyut Bhawan, Bailey Road, Pattna. 3. General Manager cum Chief Engineer, Muzaffarpur Thermal Power Station, Kanti, District Muzaffarpur 4. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. …. … Respondents. ----------- For the petitioner: Mr. Shivaji Pandey, Senior Advocate Mr. Ajit Kumar, Advocate Mr. Avinash Kumar,Advocate For the Respondents: Mr. V.N. Sahay, Advocate Mr. Arun Shrivastava, Advocate --- P R E S E N T THE HON’E MR. JUSTICE RAMESH KUMAR DATTA ---- R.K. Datta,J. Heard learned counsel for the petitioner and learned counsel for the respondent Bihar State Electricity Board. The petitioner prays for quashing the Award dated 15.2.2000 passed by the Presiding Officer, Industrial Tribunal, Patna in Misc. Case No. 57 of 1993, by which he has held that charges leveled against the petitioner have been proved by the respondent Board and further refused to interfere with the punishment of dismissal - 2 - awarded by the Board. The petitioner was appointed as Telephone Mechanic on 8th July, 1965 by the Bihar State Electricity Board, prior to which he was in service with the Indian Army from 1960 to 1964 from where he was discharged on medical ground. By office order dated 30.1.1992 the petitioner was placed under suspension in anticipation of proceeding departmentally against him and departmental proceedings were initiated against him on three charges. The first charge was that he had manipulated and interpolated on the first page of Part-1 of his Service Book regarding date of birth from 5.5.1940 to 5.5.1946 and thereby attempted to extend his date of superannuation. The second charge was that for verification of his date of birth on account of manipulation in the service book, the Matriculation Certificate was demanded from him but despite many letters and reminders, he did not produce his Matriculation Certificate and also disobeyed the orders of the Board. The third charge was that by office order No. 295 dated 26.5.1988 of the Barauni Thermal Power Station he was appointed as Foreman Grade-I on condition that he shall join the said post - 3 - within 15 days from the date of issuance of the order, otherwise his appointment shall be treated as automatically cancelled, pursuant to which he joined on the post on 26.5.1988 itself and the same was also recorded in his service book, but subsequently it was manipulated and changed to 26.8.1988 and he did the same so as to get the benefit of completing 20 years of service as telephone mechanic on 1.8.1988 for obtaining the benefit of Senior Selection Grade on the said post, which was also granted to him, but subsequently withdrawn on discovery of the fact. In the domestic enquiry the charges were found proved against the petitioner and ultimately by office order No.5521 dated 7.10.1993 it was communicated that he has been dismissed from the service of the board with immediate effect and further that he shall not be paid anything except the subsistence allowance for the period of his suspension. Aggrieved by the same, the petitioner moved the matter before the Industrial Tribunal, Patna by filing an application under Section 33 A of the Industrial Disputes Act, 1947 as Reference Case No. 2/1993 was pending in the Tribunal for - 4 - adjudication on another matter which had been referred to the Tribunal by the Government on 6.10.1993, whereas the petitioner was dismissed from service on 7.10.1993 without taking the approval of the Tribunal under Section 33 (2) (b) of the Act. The respondent Board was given an opportunity to produce material showing fairness of the domestic enquiry but since no evidence was produced by the Management on the said point, it was held that the domestic enquiry was unfair and the matter was, accordingly, taken up by the Tribunal on merit. Considering the evidence and submissions of the parties, the Tribunal came to the conclusion that all the three charges were found proved against the petitioner beyond shadow of doubt. On the point of punishment also the Tribunal rejected the contention that the order of dismissal was very harsh and a lesser punishment be inflicted holding that the petitioner has been found guilty of committing gross misconduct and insubordination by making changes in his service records and by not producing his Matriculation Certificate in spite of demand for verification of his actual date of birth and thus it was found that he did not deserve any lenient consideration - 5 - and his dismissal was justified; accordingly, the award dated 15.2.2000 was made. Aggrieved by the same, the petitioner has come to this Court. Learned counsel for the petitioner submits that so far as charge regarding interpolation of the date of birth in the service book is concerned, the petitioner can not be blamed for the same, as such records are in the custody of the Board. It is further submitted that the petitioner could not have been held guilty of insubordination for not producing the Matriculation Certificate as the same was not available with him and the moment it was discovered as lying with his friend, he had produced the same before the enquiry officer of the Board, although the same was done after the conclusion of the enquiry but before the submission of the enquiry report. It is urged by learned counsel that from the Matriculation Certificate, it is evident that his date of birth was 5.5.1942 and thus the recording of the said date of birth in the service book as 5.5.1940 as well as the alleged change of the same to 5.5.1946 is of no effect. It is also submitted by learned counsel that there is no - 6 - positive evidence before the Tribunal to show that the petitioner himself had made or got the said interpolation made since no one has come forward in support of the said fact and only on the basis of circumstantial evidence the said charge has been found to be proved against him. It is contended that since the records are in the custody of the employer unless there is positive evidence to show that the employee had indulged in the manipulation and forgery in change of date of birth, no inference can be drawn that he is responsible for the same. It is further submitted by learned counsel that he had brought on the record the Board‟s letter No.479 dated 28.1.1988 and as also another office letter No.2835 dated 22.6.1992 relating to housing loan taken, in both of which the date of birth of the petitioner has been shown as 5.5.1942 and thus at the relevant time the necessary facts were already available with the Board and there was no occasion to saddle the petitioner with liability on account of non-production of the Matriculation Certificate. The further contention of the learned counsel so far as the promotion of the petitioner - 7 - to the post of Foreman Grade-I is concerned, is that he had stated the said fact before the General Manager-cum-Chief Engineer of the Board by his letter dated 6.8.1988 in which he had sought permission for extension of date of joining by three months so that he could be entitled to the benefit of the selection grade and the same was also allowed in the margin of the letter of the General Manager-cum- Chief Engineer and thus the said charge could not be held to have been proved against him. It is also the contention of learned counsel that the Secretary, who has issued the order of dismissal dated 7.10.1993 is not an appointing authority, rather it is the General Manager-cum-Chief Engineer, who was his appointing authority and thus the said Secretary B.S.E.B. could not have passed the order of dismissal. Learned counsel also submits that the charges do not fall within any category of misconduct as enumerated in the Certified Standing Order of the Board and, therefore, it cannot be said that any misconduct under the said Standing Order has been proved against the petitioner, for which any punishment could have been awarded to - 8 - him. In support of the said stand, learned counsel for the petitioner relies upon a decision of the Supreme Court in the Case of A.L. Kalra vs. Project and Equipment Corporation of India Ltd. : AIR 1984 SC 1361, in paragraph No.22 of which it has been held as follows: “22. Rule 4 bears the heading „General‟. Rule 5 bears the heading „Misconduct‟. The draftsmen of the 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of a certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of - 9 - the enumerated misconduct in Rule 5. Any attempt to telescope Rule 4 into Rule 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary to dilate on this point in view of a recent decision of this Court in - 10 - Glaxo Laborators (I) Ltd. v. Presding Officer, Labour Court, Meerut where this Court held that everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty”. Rule 4 styled as „General‟ specifies a norm of behaviour but does not specify that its violation will constitute misconduct. In Rule 5, it is - 11 - nowhere stated that anything violative of Rule 4 would be per se a misconduct in any of the sub- clauses of Rule 5 which specifies misconduct. It would therefore appear that even if the facts alleged in two heads of charges are accepted as wholly proved, yet that would not constitute misconduct as prescribed in Rule 5 and no penalty can be imposed for such conduct. It may as well be mentioned that Rule 25 which prescribes penalties specifically provides that any of the penalties therein mentioned can be imposed on any employee for misconduct committed by him. Rule 4 does not specify a misconduct.” It is lastly submitted by learned counsel for the petitioner that the punishment of dismissal is not the only punishment enumerated under clause 29 B of the certified standing order and considering the nature of the allegations - 12 - proved the said punishment is grossly disproportionate and fit to be set aside and replaced by a suitable lesser punishment, if this Court finds the charges as having been proved against the petitioner. In support of the same, he also relies upon a decision of the Supreme Court in the case of Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn and another : (2007) 4 SCC 669, in paragraph Nos. 18 and 19 of which it has been held as follows: “18. “Proportionality” is a principle where the Court is concerned with the process, method or manner in which the decision- maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise–the - 13 - elaboration of a rule of permissible priorities. 19. de Smith states that “proportionality” involves “Balancing test” and “necessity test”. Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests of a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative”. Learned counsel for the respondent Electricity Board, on the other hand, submits that all the charges against the petitioner were found proved in the domestic enquiry conducted by the Board and also before the Industrial Tribunal. It is submitted that the petitioner alone can be responsible for any interpolation or manipulation in his service book as no one else would have interest in ensuring the change in the date of birth so as to extend the age of superannuation. - 14 - It is urged that if the petitioner‟s intention was bona fide he would have produced the Matriculation Certificate when it was demanded by the Board but he deliberately chose not to produce the same as it would have foiled his entire game. It is further submitted that the Matriculation Certificate showed his date of birth as 5.5.1942 but he got the date of birth recorded in the service book as 5.5.1940. The date of birth is recorded in the first page of the service book on the basis of declaration made by the employee and the employee also signs on the first page of the service book and thus he is fully aware of the date of birth. It is urged by learned counsel that deliberately the year 1940 has been mentioned by the petitioner with an intention to change the same to 1946, as both the figure „0‟ in „40‟ can be easily made into „6‟ and the word „six‟ can be easily inserted after the word „forty‟ and thus it appears that deliberately the petitioner with the said scheme in view declared his date of birth as 1940 in his service book. If the petitioner‟s intention was honest in the matter then he would have immediately produced the Matriculation Certificate. - 15 - It is also urged by learned counsel that from the sequence of events also it is evident that the petitioner had deliberately not produced the Matriculation Certificate, which was lying at all times with him. Had it not been so then the petitioner would not have taken the plea that he has lost his Matriculation Certificate and has written to the J.K. School, Jabalpur in Madhya Pradesh for issuance of duplicate Matriculation Certificate, for which he also produced an alleged letter written to the said school whereas ultimately when the Matriculation Certificate has been produced after the conclusion of the enquiry proceedings, the same is not of M.P. Board but issued by the Bihar School Examination Board wherein the petitioner has been shown as a student of Simari High School. This, according to learned counsel, shows the complete false pleas that the petitioner was taking at all times in order to not produce the Matriculation Certificate. It is also urged that the stand taken by the petitioner that the Matriculation Certificate had been given by him to his friend, who had also come forward to depose before the Tribunal, and when his friend discovered the same he handed it - 16 - over to him and then he had produced the same, is also totally unbelievable in view of the stand taken by the petitioner from time to time and the false statements made by him regarding the same having been destroyed in the floods and his having written an application to his so-called school in Madhya Pradesh. It is submitted by learned counsel that the Tribunal has rightly not believed such a cock-and-bull story made by the petitioner. Lastly, regarding the third charge also, it is urged by learned counsel for the Board that the so-called application dated 6.6.1988 filed by the petitioner before the General Manager-cum- Chief Engineer, M.T.P.S. has no relevance in the matter, rather it further shows the misconduct which the petitioner has continuously committed. Learned counsel points out that in the entire letter not a word has been mentioned by the petitioner that he had already joined on 26.5.1988 on the post of Foreman Grade-I, rather he had suppressed the said fact where he had prayed for extending the joining period from fifteen days to three months. The said suppression of fact clearly goes to show that interpolation in the joining date in the service book has been made by the - 17 - petitioner and instead of proving the contrary goes to establish the charge No.3 made against him, which has also been found to be proved by the Tribunal. It is, thus, submitted by learned counsel for the Board that on the basis of the charges and the materials on the record, it is evident that the petitioner is habituated in falsifying the service records with the Board and in such circumstances the only punishment that he deserves is that of dismissal, which has already been awarded by the authority of the Board. Learned counsel also points out that it is not correct to say that the charges against the petitioner would not come within the specified misconduct, as the same would be covered by at least sub clause (a) of the Certified Standing Order, namely, wilful insubordination or disobedience, whether alone or incombination with others, of any lawful or reasonable order of a superior authority; sub clause (c) theft, fraud or dishonesty in connection with the Board‟s property or business; and sub clause (p) giving intentionally false information regarding his name, age, father‟s name, qualification or - 18 - previous service or any other related matter, apart from other sub-clauses. Learned counsel also submits that there is no force in the contention that the Secretary of the Board is not authorized to pass an order of dismissal with respect to the petitioner. Under Regulation 15 of the Bihar State Electricity Board (Conduct of Business) Regulation, 1973, the Secretary is empowered to make appointments to sanctioned non- gazetted posts in the office of the Board on such emoluments and in such manner as may be decided by the Board and also all the orders and decisions of the Board and instruments issued by the Board shall be authenticated under the signature of the Secretary. It is further pointed out by learned counsel that the order dated 7.10.1993 has been issued under the signature of the Secretary of the Board but the decision, in fact, has been taken at the level of the Chairman of the Board and the same has been communicated as an office order under the signature of the Secretary of the Board as per the requirement of Regulation 15 of the said Regulations and thus, there is no infirmity in the order of dismissal passed in that regard. - 19 - Further, it is contended that by the Circular dated 3.12.1980 issued by the Board and by Office Order No.689 dated 8.2.1979 that the General Manager-cum- Chief Engineer has only been delegated authority to take disciplinary action with respect to certain erring workmen and thus the said contention of learned counsel for the petitioner that only the General Manager-cum- Chief Engineer could have passed an order does not appear to be correct. Learned counsel for the Board also submits that the writ Court does not sit as a court of appeal over the decision of the Tribunals which are the last court of facts and does not re- appreciate the findings of fact recorded by the Tribunal. If the findings of the Tribunal are based upon some evidence and they are not perverse then no interference is permissible under Article 226 of the Constitution of India with respect to the same. In support of the same, he has relied upon a decision of the Supreme Court in the case of Harjinder Singh. vs. Punjab State Warehousing Corporation: 2010 LIC 1433 in paragraph No.10 of which it has been laid down as follows: - 20 - “10. We have considered the respective submissions. In our opinion, the impugned order is liable to be set aside only on the ground that while interfering with the award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution-Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675: (2003 AIR SCW 3872), In Syed Yakoob‟s case, this Court delineated the scope of the writ of certiorari in the following words: “The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court - 21 - and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals; these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory - 22 - jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence that - 23 - would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits