HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 302 of 2001(SS) Old No. 19990 of 1999 Ramesh Chandra vs. The Presiding Officer Labour Court, U.P. Dehradun & another. Approved for reporting. _______________________ Date of decision: 13.07.2004 Initial of Judge 1 IN THE HIGH COURT OF UTTARANCHAL, AT NAINITAL (Old No. 19990 of 1999) Writ Petition No. 302 of 2001 (S/S) Ramesh Chandra. ………. Petitioner Versus The Presiding Officer, Labour Court, U.P. Dehradun & another. ………. Respondents Mr. Anurag Bisaria, Advocate for the petitioner. Learned Standing Counsel for the State. Hon’ble Rajesh Tandon, J. By means of the present writ petition, the petitioner has prayed for a writ of certiorari to quash the award of the Labour Court dated 21.8.1995. A further writ of mandamus is sought to command the respondent No. 2 to reinstate the petitioner with full back wages and continuity of service. Brief facts giving rise to the present writ petition are that the petitioner was a permanent employee of respondent No. 2 on the post of Conductor. Petitioner was served with two charge-sheets for certain act of mis-conduct and after holding the departmental enquiry jointly in both the charge-sheets, the petitioner was removed from service. The matter of the petitioner was referred to the Labour Court, Dehradun for adjudication, which was registered as case No. 69 of 1991. Petitioner contested the case by filing a written statement stating that the petitioner jointed his duties as Conductor on 24.12.1975 against a clear vacancy of Conductor. During his service, the petitioner was served with a report dated 27.06.1987 that Shri H.S. Saxena is nominated as Enquiry Officer. Petitioner denied the charges leveled against him and submitted his reply dated 3.8.1989, wherein the petitioner has stated that he had to proceed on Medical Leave from 19.5.1987 to 22.5.1987 and therefore, the cash collected on 18.5.1987 could only be deposited on 23.5.1987 when the 2 petitioner resumed his duties. Thereafter, the petitioner was again served with a charge-sheet dated 12.5.1988 regarding alleged incident on 26.11.1987 that he was over-drunk at the time of duty. Petitioner demanded necessary documents in this regard through application dated 14.6.1988 from the respondent No. 2, but these documents were never supplied to the petitioner. Respondent No. 2 appointed Enquiry Officer without waiting for the reply of the petitioner. Though the petitioner submitted his reply on 9.12.1988, even then the reply was asked for within a week from the petitioner vide letter dated 2.2.1989. The Enquiry Officer submitted his report and on the basis of the said report, a show cause notice was issued to the petitioner, which was opposed by the petitioner by his reply dated 19.2.1990, but the punishing authority without application of mind, removed the petitioner from service vide letter dated 19.3.1990. Against this, petitioner preferred an appeal dated 3.5.1990, which was also rejected by respondent No. 2. A written statement was field on behalf of respondent No. 2 also before the Labour Court. The departmental enquiry was held against the petitioner and the enquiry officer submitted his report in two separate charge-sheets. The Labour Court has given its award on the basis of the enquiry reports submitted by the enquiry officer. The labour Court held that the punishment of removal from service of the petitioner was not excessive but was right and fair and the petitioner is not entitled to any relief whatsoever. Being aggrieved by the said award of the Labour Court dated 21.8.1995, the present writ petition has been filed. I have heard learned counsel for the parties and perused the evidence on record. So far as the first charge is concerned, the charge leveled against the petitioner is that on 19.5.1987, the petitioner was absent from his duty and the amount of Rs. 632.60/- collected on 18.5.1987 from the sale of tickets was not deposited by the petitioner. In this regard, the evidence on record shows that the petitioner had to go on Medical Leave from 19.5.1987 to 22.5.1987 and as such, the cash 3 collected on 18.5.1987 could not be deposited in time. However, the same was deposited on 23.5.1987, when the petitioner came back from leave and resumed his duties. So, it is not open for the respondents to punish the petitioner on account of the first charge. So far as the Second charge is concerned, the charge leveled against the petitioner is that 26.11.1987, the petitioner was over-drunk at the time of duty and as such, he could not even gave the tickets to the passengers and so much so, the petitioner had to be handed over to Police, because of which, the bus service was cancelled, thereby causing great loss to the Corporation. In this regard, the petitioner has submitted that he was not afforded any reasonable opportunity as he was not given the documents demanded by him. On the facts of the present case, following points arises for determination: i. Whether the order of dismissal is bad for want of affording reasonable opportunity to the petitioner against the proposed punishment? ii. Whether the order of dismissal commensurate with the charges leveled against the petitioner? Finding on point No. i: The grievance of the petitioner is that while passing the order of dismissal, an opportunity with regard to the proposed punishment having not been given to the petitioner as the documents demanded by him were not supplied to him and as such, the impugned order is wholly illegal and arbitrary and on the basis of the said charges, major punishment order of dismissal cannot be passed against the petitioner. As held in the case of Kapoor Singh Vs Union of India reported in AIR 1960 Supreme Court 493, the Punishing Authorities should assess the evidence recorded by the Enquiry Officer and he must come to his own conclusion after appreciation of evidence. Learned counsel for the petitioner has submitted that a very vague order has been passed by the Punishing Authority without 4 giving any opportunity to the petitioner. Natural justice requires that an opportunity should be given to the petitioner for the proposed punishment against the petitioner. In fact, the punishing Authority was required to satisfy himself that only the dismissal can be a way out and no other punishment can be awarded. It is clear violation of Article 311 sub-clause 2 of the Constitution of India. In any way, punishment, which has been awarded does not commensurate with the charges leveled against the petitioner and the dismissal is extreme in nature. In the case of Union of India Vs Mohd. Ramzan Khan reported in 1991 (1) UPLBEC 456, it has been held as under: “Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report become necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or terminated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd Amendment. Therefore, supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, 5 therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position.” Further, in the case of Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others reported in 1993(4) Supreme Court Cases 727, it has been held as under:- “59. Even prior to the Constitution (Forty-second Amendment) Act the entire proceedings was considered as an integral whole and on receipt of the report of the enquiry officer the disciplinary authority was required to consider the record and to arrive at a provisional conclusion thereon; a show-cause notice with the proposed punished was a part of the reasonable opportunity envisaged under Article 311(2). The supply of the copy of the report at that stage was made an integral part of the reasonable opportunity. On receipt thereof the delinquent officer got the opportunity to controvert, even the findings recorded, their correctness and legality, showing that the charges which were held proved by the enquiry officer could not be sustained for the reasons set forth in the reply to the show-cause notice. Alternatively he was entitled to show mitigation or extenuating circumstances including previous conduct or record of service for dropping the action or to impose lesser punishment. 60. Section 44 of the Forty-second Amendment Act did away with supply of the copy of the report on the proposed punishment but was not intended to deny fair, just and reasonable opportunity to the delinquent, but to be a reminder to the disciplinary authority that he is still not absolved of his duty to consider the material on records, the evidence along with the report, but before he does so, he must equally accord to the delinquent, a fair and reasonable opportunity of his say on the report when the disciplinary authority seeks to rely thereon.” Finding on point No. ii: 6 Learned counsel for the petitioner has argued that the order of dismissal does not commensurate with the charges leveled against the petitioner. In this regard, in the case of Dev Singh Vs Punjab Tourism Development Corporation Ltd. & another reported in 2003(11) AIC 494 (SC), the Apex Court, while dealing with the punishment of dismissal, has observed as under: “We are of the opinion that when the Service By-Laws applicable to the corporation under Service By-Laws 17 provide various minor punishments, we fail to appreciate why only maximum punishment available under the said By-Laws should be awarded on the facts of the present case. We think the punishment of dismissal for mere misplacement of a file without any ulterior motive is too harsh a punishment which is totally disproportion-conscience.” In view of the aforesaid observations, it was not possible to pass the major penalty of dismissal. Considering all these facts and circumstances, the order of dismissal is highly disproportionate. In my opinion, the punishing authority should have taken into consideration as to whether the charges leveled against the petitioner commensurate with the punishment awarded to the petitioner. Even in case of awarding the minor punishment with regard to stoppage of increments, the disciplinary authority was required to record a finding as to whether it commensurate with the charges leveled against the petitioner or not. However, the disciplinary authority has, without application of mind, awarded punishment of dismissal i.e. major penalty, which does not, in any way, commensurate with the charges leveled against the petitioner. In view of the above, I direct that the petitioner shall be reinstated in service. He shall be allowed to join his duties forthwith. The petitioner shall be paid 50% of the back wages. However, it is 7 provided that in case of post-retiral benefits, if any, the service of the petitioner shall be taken to be continuous. Subject to aforesaid observations, the writ petition is allowed. No order as to costs. (Rajesh Tandon, J.) Dt. 27.07.2004 G