C.W.P No. 482 of 2001 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 482 of 2001 Date of decision : November 25 , 2008 Manjit Singh ...... Petitioner through Mr.R.K.Chopra, Sr. Advocate with Ms.Maninder, Advocate v. The Bank of India and another, ...... Respondents through Ms. Radhika Suri, Advocate CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J The petitioner was appointed as a clerk in the respondent-bank on 20.12.1976. In August 1982, he was promoted as a Special Assistant. On 25.4.2000, an altercation took place between the petitioner and some other co-employees. By order dated 29.4.2000, the petitioner was placed under suspension and about two months later charge-sheet dated 19.6.2000 was served upon him and a regular inquiry was ordered on the following charge :- “On 25.4.2000 at about 3.15 p.m, you asked Shri Sohan C.W.P No. 482 of 2001 ::2:: Lal, Staff Clerk to hand over the vouchers relating to S.B.Supplementary for checking, but Shri Sohan Lal replied that he would give the same after writing the supplementary. Then you tried to snatch the vouchers from Shri Sohan Lal, who immediately tried to go to Shri H.S.Sampla, Staff Officer and you caught hold Shri Sohan Lal from back. At this point Shri H.S.Sampla and Shri Hari Singh asked you to leave Shri Sohan Lal. After this you repeatedly slapped Shri Hari Singh and abused Shri Sohan Lal and Shri Hari Singh. At this scuffle when Mr. Param Narinder Singh, Daftari tried to rescue Shri Hari Singh and Shri Sohan Lal, you also abused him without any reasons.” The Inquiry Officer submitted his report, dated 7.9.2000 to the following effect :- “xx xx xx While analyzing the aforesaid evidence, it is observed that the present enquiry has been instituted to look into the specific charges mentioned in the charge sheet. Whatever has happened before lunch hours does not fall under the purview of the present enquiry. Moreover it does not find a mention in the reporting of the manager and hence may be treated as extraneous matter for the purpose of enquiry. The relevant part of the enquiry is the incident that happened after lunch hours at about 3.15. C.W.P No. 482 of 2001 ::3:: At no stage of the enquiry the defence has tried to disprove that the quarrel did not occur. It stands proved that Manjit Singh was one party in the quarrel. It also stands proved beyond doubt that Mr. Hari Singh sustained a swelling on his face as a result of slapping by Mr. Manjit Singh got any slaps or his turban fell down on the ground. While management witnesses speak against this, defence witnesses speak for it. However, the fact remains that a quarrel has taken place between Mr. Manjit Singh on one hand and Mr. Hari Singh, Mr. Sohan Lal and Mr. Puram Narinder Singh on the other side, wherein abuses were exchanged. On the basis of aforesaid reasoning, evidence produced by BPO & DR and the written briefs submitted by the BPO, it can be safely concluded that the charges against the CSE stand proved.” The inquiry report was forwarded to the petitioner along with notice dated 12.9.2000 requiring him to show cause against the proposed punishment of removing him from bank service, with superannuation benefits as would be due otherwise at that stage, without disqualification for future employment. The petitioner was called for personal hearing where he re-iterated his defence that infact he had been beaten up and that in the circumstances the proposed punishment was dis-proportionate. He further stated that for his default he was ready to express regret and requested for leniency in the proposed punishment. The punishing authority by order dated 19.9.2000 imposed the above proposed punishment on the petitioner. C.W.P No. 482 of 2001 ::4:: The petitioner filed an appeal, which was dismissed with the following observations :- “xx xx xx 4. The undersigned in his capacity as the appellate authority finds that the charge-sheet was issued to you on the basis of misconduct committed by you and the enquiry held against you, is fair and justified, findings of the enquiry officer have been arrived at strictly on the basis of evidence placed on record. Considering the seriousness of the charges, the decision of the Disciplinary Authority for imposing the punishment of `Removal from Bank's Service, is therefore justified.” The petitioner is now before this Court by way of the instant petition. Learned senior counsel for the petitioner has argued that in view of the finding of the Inquiry Officer, which was only to the effect that a quarrel had taken place between the petitioner and three other persons wherein abuses were exchanged, the punishment was grossly dis- proportionate. He further argued that the petitioner was dismissed after he had put in 24 years of service and still had 12 years more to serve and that consideration of this fact was conspicuous by its absence both in the order of punishment as well as the appellate order. Learned counsel for the respondents has countered by arguing that the petitioner had been earlier issued a punishment of warning in 1994, punishment of bringing down his basic pay by one stage by order dated 13.3.1997 and yet another punishment of bringing down his basic pay by C.W.P No. 482 of 2001 ::5:: one stage by order dated 10.3.1999. Learned counsel particularly emphasized the fact that the punishment of 1997 related to similar disorderly conduct on the part of the petitioner. In my opinion, the most glaring aspect of the trial process in this case is the complete exoneration of the three other employees who were ranged against the petitioner in the altercation and the surprising omission of the inquiry officer to exclude from consideration entirely, the earlier pre- lunch episode which was undoubtedly the genesis of the after-noon altercation. It is inconceivable that a quarrel would take place between one person on one side and three on the other and that one man would manhandle the others while they would turn the proverbial other cheek; which is not to give a clean chit to the petitioner, but only to emphasize the differential treatment meted out to him. In my opinion, after having held in the ultimate analysis that a quarrel had broken out between the petitioner and three other persons, the Inquiry Officer could not blandly hold that it could be safely concluded that charges against the petitioner stood proved as if the petitioner were a wolf among sheep. In his appeal, the petitioner raised this point, albeit while trying to show himself to be completely innocent, but some-how even the appellate authority did not consider this crucial aspect. A perusal of the appellate order further reveals that even the previous long service of the petitioner- as well, as to be true, his previous defalcation- have not been considered at all and his plea for leniency has been ruthlessly turned down. Learned counsel has tried to draw support for the punishment, as mentioned above, from the earlier actions of 1994, 1997 and 1999 but, in my opinion, this attempt to supplement the reasons, ex-post facto, is not permissible. C.W.P No. 482 of 2001 ::6:: No doubt the petitioner was guilty of disorderly conduct, but in the facts and circumstances as brought out above, he cannot be considered as the devil incarnate. When confronted with these findings during hearing, learned counsel for the respondents submitted that Courts have very limited jurisdiction to interfere in disciplinary proceedings, especially where, as in the present case, a regular inquiry was held with which the petitioner did not associate voluntarily. However, the Hon'ble Supreme Court in a latest decision reported as Union of India and another vs S. S. Ahluwalia, 2007(7) SCC 257, held as follows :- “.... The scope of judicial review in the matter of imposition of penalty, as a result of disciplinary proceedings, is very limited. The Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. In such a case, the Court is to remit the matter to the disciplinary authority for reconsideration of the punishment. In an appropriate case, in order to avoid delay the court can itself impose lesser penalty......” In my opinion, the punishment in this case is grossly dis- proportionate. The petitioner has been out of job for eight years at a time when a man's responsibilities are peaking. Learned senior counsel for the petitioner has urged that the petitioner has learnt a lesson and prays for reinstatement. The petitioner has also filed an affidavit dated 21.11.2008 undertaking that if he is involved in any misdemeanour large or small, the impugned punishment order may be revived. The said affidavit is taken on record. In other words, the petitioner has offered himself to be on probation. C.W.P No. 482 of 2001 ::7:: Learned counsel for the petitioner has urged that in view of the reinstatement, back-wages should be awarded to the petitioner. In this context, the Hon'ble Supreme Court in J.K. Synthetics Ltd. Vs K.P. Agrawal and another, reported as (2007)2 SCC 433 held as follows :- “.....But the manner in which back-wages is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. We may refer to the latest of a series of decisions on this question. In U.P. State Brassware Corp. Ltd. vs. Udai Narain Pandey, 2006 (1) SCC 4791, this Court following Allahabad Jal Sansthan vs. Daya Shankar Rai, 2005(5) SCC 124, and Kendriya Vidyalaya Sangathan vs. S.C. Sharma, 2005 (2) SCC 363, held as follows: “A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.” “....although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now with the passage of time, a pragmatic view of the matter is being taken by the Courts realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that C.W.P No. 482 of 2001 ::8:: was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago namely when the workman was retrenched ....... The changes (were) brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatization and outsourcing, is evident. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act ..... While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot therefore be the natural consequence.” In consequence of what has been held above, and in view of the parameters laid down by the Hon'ble Supreme Court in J.K.Synthetics Ltd's case (supra), I am of the opinion that the ends of justice would be met C.W.P No. 482 of 2001 ::9:: if the impugned punishment order is set aside, the petitioner is reinstated into service and the next lower punishment of reduction of pay by two stages is imposed upon him. It is further clarified that the petitioner would not be entitled to any wages for the period he remained out of service or for even counting this period towards his service except that the same cannot be construed as a break in service for the purpose of superannuation benefits. Consequently, the writ petition is allowed in the above terms. No costs. ( AJAY TEWARI ) November 25, 2008. JUDGE `kk'