Case: Chairman cum Managing Director Coal India Limited &amp; Another Vs. Mukul Kumar Choudhuri &amp; Others

3. Mukul Kumar Choudhuri, Respondent No. 1, joined his service with the Eastern Coalfields in 1992 as System Officer. In 1996, he was transferred to North-Eastern Coalfields, Assam. On September 16, 1998, the Respondent No. 1 proceeded on sanctioned leave upto September 29, 1998. However, after expiry of his sanctioned leave, he did not report to duty and despite reminders remained absent for six months without any authorization.4. On March 18, 1999, the Director-in-Charge, North-Eastern Coalfields initiated disciplinary enquiry against the Respondent No. 1 under Rule 29 of the Coal India Executives Conduct Discipline and Appeal Rules, 1978 (for short, `Conduct Rules, 1978) for misconduct on his part by -(i) absenting himself without leave; (ii) Overstaying the sanctioned leave for more than four consecutive days; and (iii) Desertion of job and failure to maintain integrity and devotion to duty.5. On May 31, 1999, the Respondent No. 1 sent letter of resignation. His resignation was, however, not accepted by the Management and, accordingly, he joined his duty on September 10, 1999.6. In the enquiry proceedings, the Respondent No. 1 appeared before the Inquiry Officer and admitted the charges leveled against him. The Inquiry Officer concluded the enquiry and vide his report dated October 5, 1999 held that the delinquent was guilty of the charges as mentioned in the charge-sheet.7. Upon receipt of the enquiry report, a second show cause notice dated December 10, 1999 was issued to the Respondent No. 1 indicating therein that in view of the findings recorded by the Inquiry Officer, termination of his services was proposed. The delinquent was asked to show cause as to why the punishment of termination of service be not awarded to him. A copy of the enquiry report was sent along with the second show cause notice.8. The Respondent No. 1 responded to the second show cause notice. He submitted that he sincerely wanted to leave the Company for several personal problems but these were aggravated by unsympathetic attitude of the Management in not accepting his resignation. He submitted that he deserved no punishment and that his explanation be considered favourably.9. By an Office Order dated November 29, 2000, the Respondent No. 1 was removed from service with immediate effect. The Respondent No. 1 pursued the departmental remedy but without any success. He also approached Calcutta High Court on more than one occasion raising grievance of non-consideration of the departmental appeal and the review application before Reviewing Authority and the departmental authorities not passing the reasoned order. It is not necessary to refer to these proceedings in details. Suffice it to say that as directed by the High Court, he challenged the order of removal before the Board of Directors which came to be dismissed on August 17, 2006. Then, he again approached the High Court by filing writ petition being Writ Petition No. 1334 of 2006.10. The Single Judge of the High Court by his judgment delivered on July 26, 2007 allowed the writ petition, set aside the impugned orders and directed the reinstatement of Respondent No. 1. The Single Judge, however, did not award back wages to the Respondent No. 1 but declared that he be treated to be in continuous service without any break and without affecting his seniority.11. The order of the Single Judge was challenged in separate appeals by both parties before the Division Bench. The appeal preferred by the present appellants was dismissed while the appeal preferred by the Respondent No. 1 was allowed and it was held that he was entitled to back wages for the period on and from the year 2000 until reinstatement.Mukul Kumar Choudhuri, Respondent No. 1, joined his service with the Eastern Coalfields in 1992 as System Officer. In 1996, he was transferred to North-Eastern Coalfields, Assam. On September 16, 1998, the Respondent No. 1 proceeded on sanctioned leave upto September 29, 1998. However, after expiry of his sanctioned leave, he did not report to duty and despite reminders remained absent for six months without any authorization.4. On March 18, 1999, the Director-in-Charge, North-Eastern Coalfields initiated disciplinary enquiry against the Respondent No. 1 under Rule 29 of the Coal India Executives Conduct Discipline and Appeal Rules, 1978 (for short, `Conduct Rules, 1978) for misconduct on his part by -(i) absenting himself without leave; (ii) Overstaying the sanctioned leave for more than four consecutive days; and (iii) Desertion of job and failure to maintain integrity and devotion to duty.5. On May 31, 1999, the Respondent No. 1 sent letter of resignation. His resignation was, however, not accepted by the Management and, accordingly, he joined his duty on September 10, 1999.6. In the enquiry proceedings, the Respondent No. 1 appeared before the Inquiry Officer and admitted the charges leveled against him. The Inquiry Officer concluded the enquiry and vide his report dated October 5, 1999 held that the delinquent was guilty of the charges as mentioned in the charge-sheet.7. Upon receipt of the enquiry report, a second show cause notice dated December 10, 1999 was issued to the Respondent No. 1 indicating therein that in view of the findings recorded by the Inquiry Officer, termination of his services was proposed. The delinquent was asked to show cause as to why the punishment of termination of service be not awarded to him. A copy of the enquiry report was sent along with the second show cause notice.8. The Respondent No. 1 responded to the second show cause notice. He submitted that he sincerely wanted to leave the Company for several personal problems but these were aggravated by unsympathetic attitude of the Management in not accepting his resignation. He submitted that he deserved no punishment and that his explanation be considered favourably.9. By an Office Order dated November 29, 2000, the Respondent No. 1 was removed from service with immediate effect. The Respondent No. 1 pursued the departmental remedy but without any success. He also approached Calcutta High Court on more than one occasion raising grievance of non-consideration of the departmental appeal and the review application before Reviewing Authority and the departmental authorities not passing the reasoned order. It is not necessary to refer to these proceedings in details. Suffice it to say that as directed by the High Court, he challenged the order of removal before the Board of Directors which came to be dismissed on August 17, 2006. Then, he again approached the High Court by filing writ petition being Writ Petition No. 1334 of 2006.10. The Single Judge of the High Court by his judgment delivered on July 26, 2007 allowed the writ petition, set aside the impugned orders and directed the reinstatement of Respondent No. 1. The Single Judge, however, did not award back wages to the Respondent No. 1 but declared that he be treated to be in continuous service without any break and without affecting his seniority.11. The order of the Single Judge was challenged in separate appeals by both parties before the Division Bench. The appeal preferred by the present appellants was dismissed while the appeal preferred by the Respondent No. 1 was allowed and it was held that he was entitled to back wages for the period on and from the year 2000 until

Reasoning: 24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Companys Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not beour view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months.The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Companys Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not ber view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months.