CIVIL WRIT PETITION NO.21465 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: DECEMBER 08,2010 State Bank of Patiala, Patiala .....Petitioner VERSUS Central Government Industrial Tribunal-cum-Labour Court, Chandigarh and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Deepak Thapar, Advocate, for the petitioner. Mr. G. S. Sandhu, Advocate, for the Caveator. **** RANJIT SINGH, J. The Bank with vast resources at its disposal has come to challenge the award passed by the Labour Court, allowing the reference of a dispute regarding termination of respondent No.2 from the services of the Bank. Respondent No.2 was appointed as part time Caretaker for a Guest House of the Bank for a temporary period of three months on 16.11.2002. The education qualifications for the post of Frash/Peons/Drivers as laid down in the Bank at the relevant time were 8 th pass and below 10 th Class. Respondent No.2 had applied for the post, stating that his qualification was 10 th fail. On 18.2.2003, CIVIL WRIT PETITION NO.21465 OF 2010 :{ 2 }: respondent No.2 was appointed on permanent basis. It is alleged that he had furnished a false affidavit stating that he is 8 th Class pass and below SSCC i.e. 10 th Class. On 17.10.2003, respondent No.2 also sought permission of the Bank to appear in matriculation examination, which permission was granted. Respondent No.2 continued to work, when a complaint was received on 3.5.2005 to the effect that said respondent had already passed 10+2 examination in the year 2002 before joining the temporary service of the Bank and, thus, he had obtained this job on the basis of false averments. The matter was thoroughly investigated by the Bank and on the basis of the investigation report, show cause notice was served on respondent No.2, who admitted his fault. The reason given by respondent No.2 in this regard is that he did so for getting an employment. The petitioner charge sheeted respondent No.2 and directed regular enquiry. On the basis of enquiry report, punishment of removal from service was proposed. The appointing authority, considering the seriousness of the allegation, passed ordered removing respondent No.2 from service. He accordingly raised an industrial dispute, which was referred for adjudication to the Labour Court. The Labour Court, though has held that the allegation against respondent No.2 stood established on account of his admission of guilt but has set-aside the punishment of removal on the ground that the same was disproportionate to the alleged misconduct. The Bank has accordingly filed this petition to challenge the said award. At the outset, the attention of the learned counsel for the petitioner was drawn to the fact that somewhat similar issue arose CIVIL WRIT PETITION NO.21465 OF 2010 :{ 3 }: before this Court, where the award passed by the Labour Court was not interfered with. The copy of the order was supplied to counsel for the petitioner, who has made an attempt to distinguish the same on facts. The submission of counsel for the petitioner may to an extent be justified as in the present case respondent No.2 has admitted his guilt whereas that was not the case in CWP No.10307 of 2009 (Bank of Baroda, Chandigarh Vs. Presiding Officer, Dentral Government Tribunal, Chandigarh & another), decided on 30.6.2010. The core issue, however, would remain the same. The Minimum qualification for appointment was 8 th Class, which respondent No.2 concededly possessed. Can possession of higher qualification be a disqualification and as such a misconduct, which should lead to removal of the person from service? One may not be entitled to some extra weighage for higher qualification, unless it is so provided in the advertisement, but to say that possessing of higher qualification, even if not disclosed, should be a misconduct which should lead to dismissal or removal, will certainly be a harsh view and an unfair approach. No doubt, the petitioner did not disclose the complete facts about his qualification. Desperation to get job is the reason which can not be completely ignored. How desperate a person is to get a job that he can hide information about his qualification. The fact of not disclosing the complete qualification would not make respondent No.2 to be ineligible for appointment or would not reveal such a misconduct, which should invite removal from service. This CIVIL WRIT PETITION NO.21465 OF 2010 :{ 4 }: would not justify the action of respondent No.2 but is to take stock of hard realities of life. The courts can not be unmindful of hard realities of life. Courts have to be pragmatic and adopt realistic approach. As has been rightly observed by the Labour Court, having higher qualification can not be taken to be something which is fatal. Instances were quoted before the Labour Court, where persons with higher qualifications were still serving with the petitioner Bank. Names of eight persons in this regard were so mentioned. The Labour Court also made reference to the present qualification prescribed for the post on which respondent No.2 was appointed and it is 10+2 pass. The qualification of respondent No.2, which he had allegedly withheld, can not be considered to be a disqualification or misconduct inviting penal consequences, if it is now prescribed as minimum qualification? The Bank had failed to provide any information in regard to 8 persons whose names respondent No.2 had disclosed, who were in the service of the Bank under similar circumstances. The Labour Court was justified in observing that the petitioner-Bank could not be allowed to adopt different standards. The Labour Court, in my view, has rightly viewed the punishment to be disproportionate, considering the nature and gravity of the proved misconduct. The plea of the petitioner-Bank to seek judicial review of the order passed by the Labour Court is required to be assessed in the parameters of permissible ground of judicial review. Judicial review generally speaking is not directed against a decision but is directed against a decision making process. The question of choice CIVIL WRIT PETITION NO.21465 OF 2010 :{ 5 }: and quantum of punishment may be within the jurisdiction and discretion of the punishing authority concerned but the punishment has to suit the misconduct alleged and the offender committing such a misconduct. The punishment can not be vindictive or unduly harsh. It should not be so disproportionate to the misconduct alleged as to shock the conscious and amount in itself to conclusive evidence of bias. The doctrine of proportionality as a part of concept of judicial review would ensure that even as aspect which is otherwise within the exclusive province of punishing authority and when the decision of the authority even as to the punishment is an outrageous defiance of logic, then the same would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review. In this regard, reference can be made to Council of Civil Service Unions Vs. Minister for the Civil Service, (1984) 3 WLR 1174 (HL), where it was observed as under:- “.......Judicial Review has I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call `illegality', the second `irrationality' and the third `procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality' which is CIVIL WRIT PETITION NO.21465 OF 2010 :{ 6 }: recognised in the administrative law of several of our fellow members of the European Economic Community.........” This was referred to with approval by Hon'ble Supreme Court in Ranjit Thakur Vs. Union of India and others, AIR 1987 SC 2386. In Bhagat Ram Vs. State of Himachal Pradesh and others, AIR 1983 SC 454, the Hon'ble Supreme Court held as under:- “It is equally true that penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity or the misconduct would be violative of Article 14 of the Constitution of India.” It would need to be emphasised here that all powers have legal limit. In this background, it can be observed that the Court can see if punishment is commensurate with the proved misconduct. The penalty is, thus, not immune from correction while exercising judicial review. Seen in this context and the background of the allegation made against respondent No.2, the punishment of removal from service appears to be harsh and disproportionate and, thus, rightly needed correction, which was accordingly done by the Labour Court. I am, therefore, not inclined to interfere in exercise of writ jurisdiction. The writ petition is accordingly dismissed in limine. December 08, 2010 ( RANJIT SINGH ) khurmi JUDGE