NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined

1. Present petition is filed by the petitioner - workman under Articles 226 and 227 of the Constitution of India for the following prayers.

2. Facts of the present case are that the petitioner was appointed in the Corporation by order dated 26.01.1980 and was regularized as a sweeper w.e.f. 01.07.1981. That the petitioner was terminated from the service in the year 1983, for which he has preferred the Reference before the Labor Court, Rajkot, and Page 2 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined the Labour Court has held to be 240 days' employment and quashed and set aside the impugned order of termination and the petitioner was reinstated in service and accordingly the petitioner was working as a sweeper. On 10.04.2003, the petitioner was again illegally terminated from the service and from 26.01.1980 to 10.04.2003, he had completed 23 years of continuous service. That for the absent period from 1988 to 1992 and 1993 to 1995 and from 07.04.2001 to 10.04.2001, he has proved this fact before the Labour Court by submitting documentary evidence. That the departmental inquiry has been conducted and he was terminated from the service and, therefore he had preferred the Reference before the Labour Court.

3. Heard Mr.Brijesh Trivedi, learned counsel appearing for the petitioner and Mr. Kunan Naik, learned counsel appearing for the respondents No.1 and 2 at length.

4. Mr.Brijesh Trivedi, learned counsel appearing for the petitioner submitted the same facts which are narrated in the memo of petition. He has submitted that the Labour Court has Page 3 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined passed the impugned award through oversight and has not considered the fact based on which the inquiry was initiated against the workman is being jeopardized as for earlier unauthorized leave appropriate punishment was passed for which Reference No.1601 of 1990 was preferred and the Labour Court quashed the order of punishment vide order dated 04.03.1992 and published in the gazette on 29.04.1992 and directed to reinstate the workman in service. He has submitted that again initiating proceedings for subsequent absent cannot be used as a base and, therefore, the impugned action of the respondent - Corporation is illegal, unjust and erroneous. He has submitted that relying upon the said subsequent action, the order of punishment of removing the petitioner from the service passed by the Inquiry Officer, which came to be confirmed by the Appellate Authority and also confirmed by the Labour Court is unjust and illegal. He has also submitted that once earlier absenteeism was regularized by the department and the award passed by the Labour Court whereby the petitioner was ordered to be reinstated, the same cannot be used for subsequent absent and for initiation of the departmental proceedings. He has Page 4 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined submitted that on the basis of the charge-sheet, the Inquiry Officer has submitted the report and relying upon such report the removal order came to be passed which is unjust and illegal and the order of removal was confirmed by the Labour Court and the same is also against the settled principles of law. He has submitted that the delay of more than seven years caused in preferring Reference, which is also explained in the memo of Reference, but such facts has not been considered by the Labour Court in its true and proper spirit and, therefore, the findings recorded by the Labour Court qua delay in approaching the Labour Court is erroneous and against the principles of law. He has submitted that considering the charge levelled against the petitioner, punishment imposed upon the petitioner is disproportionate and, therefore, the same deserves to be quashed. Mr.Trivedi, learned counsel has submitted that the petitioner waived his right with regard to legality of the inquiry but so far as the findings recorded by the Inquiry Officer are concerned, the petitioner has challenged the same before the concerned authority and, therefore, the Labour Court has exceeded jurisdiction which is not vested with it while dealing Page 5 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined with the said aspect and recording the findings on the basis of the same. It is submitted by Mr.Trivedi, learned counsel that even otherwise, considering the fact that since 1991, the petitioner was working as Class IV being sweeper with the Corporation and during his career except absenteeism, there was no other allegation with regard to the service career and, therefore, considering the length of service and the punishment imposed upon by the Inquiry Officer is very harsh and disproportionate and, therefore, the same deserves to be quashed and set aside. In the alternatively, Mr.Trivedi, learned counsel has submitted that after considering the inquiry report, the respondent - Corporation ought to have considered the case sympathetically instead of passing the order of removal and Corporation ought to have considered the case of the petitioner as voluntary retirement so he can earn his retiral dues like gratuity, provident fund and leave encashment etc. Mr.Trivedi, learned counsel has, while referring the grounds enumerated in the memo of petition, submitted that the petition may be allowed and the impugned award passed by the Labour Court may be quashed and set aside.

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NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined 4.1 In support of his submission, Mr.Trivedi, learned counsel has relied upon the following decisions.

( 2) Jagdish Singh Vs. Punjab Engineering College and others , (2009) 7 SCC 301;

( 3) Union of India and another Vs. R K Sharma , 2022 LawSuit (SC) 1365;

( 4) Automotive Manufacturers Ltd, Rajkot Vs. Nanalal Panachand Vakharia and another , 2018 GLR 788; (5) U. P. State Electricity Board Vs. Rajesh Kumar, (2003) 12 SCC 548;

( 6) Shahji Vs. Executive Engineer , (2005) 12 SCC 141; ( 7) Ajaib Singh Vs. Sirhind Co-op. Marketing - Cum -

Processing Society Ltd, AIR 1999 SC 1351;

(8) Hindustan Antibiotics Ltd Vs. The Workman, AIR 1967 SC 948;

( 9) Bombay Gas C. Ltd Vs. Gopal Bhiva , AIR 1964 SC 752; (10) Town Municipal Council, Athani Vs. Presiding Officer, Page 7 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined Labour Court, Hubli, 1969 SC 1335;

(11) Sakura Vs. Tanaji, AIR 1985 SC 1279;

( 12) Jai Bhagwan Vs. Management of the Ambala Central Co-operative Bank Ltd. , AIR 1984 SC 286;

5. Per contra, Mr.Krunal Naik, learned counsel appearing on behalf of the respondent - Corporation has referred to and relied upon the affidavit-in-reply and has objected the petition. He has submitted that the conduct of the petitioner is not good and he is in habit of remaining absent from duty and at the first instance from 1988 to 1992 he was remained absent for more than 1289 days for which the order of termination of his service came to be passed and the said order was challenged by the petitioner by filing Reference (LCR) No. 1601 of 1989 before the Labour Court. 5.1 Mr.Naik, learned counsel has submitted that the petitioner has taken the defence that because of his ill-health he was remained absent from the service but for the same no sufficient proof was produced before the authority with regard to his illness and even with regard to the treatment also. He has submitted that the petitioner has not put a leave report for his illness and Page 8 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined the Labour Court has also observed that the petitioner was in habit of remaining absent from duty and he was not following the instructions of his superior and disobeying the instruction of his superior. He has submitted that only on one count the Labour Court has interfered with the order passed by the Corporation and without initiation of any departmental inquiry against the petitioner with regard to the alleged absenteeism and without giving any opportunity the order of termination was passed and, therefore, only on that ground, the Labour Court has interfered with the order and passed the order of reinstatement without back wages as clearly opined that he is not entitled for such benefits for the period of absenteeism. He has submitted that after reinstatement, again the award was passed in 1992 and on the basis of the award, the petitioner came to be reinstated and, thereafter from 1992 onward, he remained absent and in the order dated 10.04.2003, it was mentioned that after reinstatement in service, the petitioner was again unauthorizedly absent from 1993 to 1995 without any sanctioning leave and without there being any report. He has submitted that thereafter, lastly from 07.04.2001 to 10.04.2001 for a period of four days he Page 9 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined had asked for leave without pay and, thereafter, he never reported on the duty and, hence, the charge-sheet came to be led against him and the charge levelled against him in the charge-sheet and supplied all the relevant documents. He has submitted that even the petitioner was given full opportunity during the inquiry and in the inquiry proceedings, he was assisted by the friend, but he has accepted before the authority that he was remained absent because of ill-health and thereafter he never joined the duty. He has submitted that the petitioner has admitted before the authority that on the basis of the order passed by the Labour Court, he was reinstated in service in 1992 and the Inquiry Officer has recorded the findings that so far as earlier absenteeism from 1988 to 1992 and 1993 to 1995 is concerned, the inquiry is not relating to that earlier absenteeism, but it is for 2001 to 2002. He has submitted that the petitioner again absent from the duty and, therefore, the Inquiry Officer, after considering the documentary evidence and after giving full opportunity, the impugned order was passed. He has submitted that the said order was passed in consonance with the principles of natural justice and after considering the past history of the Page 10 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined petitioner and the petitioner is in habit of absenteeism from service. He has submitted that in earlier Reference, while dealing with the first reference, the Labour Court has observed that he was in habit of disobeying the instructions of his superior officer and not obeying the official instruction of his superior officer. He has submitted that under such circumstances, after considering all these facts, the Inquiry Officer has passed the impugned order of removal which came to be confirmed by the Labour Court. He has submitted that no any illegality or infirmity or perversity in the award passed by the Labour Court and, therefore, no interference is required to be called for in the present case. Mr.Naik, learned counsel has submitted that the contention raised by the petitioner with regard to the basic foundation of initiation of inquiry is concerned, the same itself is incorrect and erroneous under the facts narrated in the inquiry report and the order passed by the authority and the same was rightly dealt with by the Labour Court. So far as the delay aspect is concerned, Mr.Naik, learned counsel has submitted that the Labour Court has, after considering the relevant facts, observed that there was no justifiable reason put for by the petitioner with Page 11 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined regard to the objection raised by the respondent that the petitioner approached the Labour Court after a long delay of seven years and, therefore, the Labour Court has rightly dealt with the issue of the delay. He has submitted that so far as the legality of the inquiry and punishment imposed upon by the Inquiry Officer, whether it is disproportionate or not is concerned, the Labour Court has rightly dealt with such aspect in paras 13.7, 13.7.1 to 13.7.3 and, therefore, the Labour Court has rightly decided the Reference against the petitioner. He has submitted that no any illegality or infirmity in the impugned award passed by the Labour Court while rejecting the award and confirming the order of punishment passed by the Inquiry Officer. He has submitted that the Labour Court has, after considering all these facts, come to the conclusion that the order passed by the Inquiry Officer of removal based upon the inquiry report is in consonance with the settled principles of law and, therefore, the Labour Court has not committed any error of facts and law in rejecting the reference which is under challenge in this petition and, therefore, there is no need to interfere with the impugned award. He has submitted that the Labour Court has observed in Page 12 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined both the reference that the workman was habitual in absenteeism and the decisions relied upon by Mr.Trivedi, learned counsel are not applicable to the facts of the present case wherein absenteeism in those cases are not more than 300 days. He has submitted that in the present case at the first instance, the workman was remained absent for more than 1289 days, which came to be regularized and, thereafter, by virtue of the award passed by the Labour Court, the workman was reinstated in service in 1992 and again from 1993 to 1995, the workman was remained absent for 245 days and also absent from 11.04.2001 to 23.09.2002 for almost 18 months. He has submitted that during the departmental proceedings, the workman was remained present. However, he was not reported on duty during that period and he remained absent and, therefore, considering the conduct of the workman and his past history that he was habitual in absenteeism, no interference is required to be called for and the petition being meritless deserves to be dismissed.

6.2. In support of his submissions, Mr.Naik, learned counsel has relied upon the following decisions.

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NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined (1) Delhi Transport corporation Vs. Sardar Singh, (2004) 7 SCC 574;

( 2) Mahindra and Mahindra Ltd Vs. N. B. Narawadi , (2005) 3 SCC 134;

( 3) L & T Komatsu Ltd. Vs. N. Udayakumar , (2008) 1 SCC 224;

( 4) Prabhakar Vs. Joint director, Sericulture Department and another, (2015) 15 SCC 1;

7. This Court has considered the averments made in the petition, submissions canvassed on behalf of both the parties, affidavit-in-reply, decisions cited at the Bar and gone through the impugned award passed by the Labour Court. It appears from the record that after recording the reasoning and finding by the Labour Court in the first instance i.e. in the first reference and thereafter in second reference, the Labour Court has come to the conclusion that though there was serious case of misconduct but earlier stage without taking the due procedure and without initiation of the departmental inquiry, the order of removal was passed against the workman and, therefore, the Labour Court at Page 14 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined the first instance interfered with the order of punishment of removal and ordered to reinstate the workman in service without back wages. Even after reinstatement on the basis of the order passed in 1992, again in 1993 to 1995, the workman was remained absent for 245 days and from 2001 to 2002, he was remained absent till final hearing of departmental inquiry till 23.09.2022 days till the order of termination came to be passed. During the departmental inquiry, the workman was present, however, he was not reported on duty, which suggests that he was in habit of remaining unauthorizedly absent from the service and even he is not having recourse his higher up and disobeyed the official instruction given by his superior officer and, therefore, under such circumstances, both the Labour Court in the first reference and in the second reference have not committed any error of facts and law in passing the impugned award. It emerges from the record that from 1991 to 1999, the petitioner was remained absent for a period of 1289 days, which came to be condoned and was regularized considering the same as leave without pay, against which the Labour Court has also not interfered, but only order of termination was quashed and Page 15 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined directed to reinstate the workman in service without back wages and without giving any benefits to the petitioner. Even after the order of reinstatement passed by the Labour Court in 1992 again he was absent from 1993 to 1995 for more than 245 days and, thereafter from 2001 to 2002 again he was remained absent for more than 15 months. It appears from the record that the workman has no sufficient material and explained for remaining absent on duty and no any sufficient cause has been explained for the absent period and, therefore, this type of misconduct on the part of the workman is required to be viewed seriously and such kind of misconduct cannot be considered lightly under the service jurisprudence and it has been considered as serious misconduct on the part of the concerned employee. In my opinion the Inquiry Officer has not committed any error during the departmental inquiry and on the basis of the inquiry report, the authority, while passing the order of removal, has not committed any error and after considering such aspects, the authority has passed the order of removal which is in consonance with the settled principles of law and under service jurisprudence. So far as the inquiry is concerned, the petitioner Page 16 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined has accepted the legality of the inquiry proceedings but challenged proportionality of punishment and, therefore, I am of the opinion that the Labour Court has dealt with contentions in its true and proper spirit while considering the provisions of Section 11A of the Act and passed the impugned award confirming the order of removal passed by the authority.

8. At this juncture, it is profitable to refer to and rely upon the decision in the case of State Bank of India and others Vs. P. Zadenga reported in 2023 (6) SLR 1 (SC) wherein the Hon'ble Supreme Court has held and observed in para 29.2 as under:-

9. After considering the said decisions, this Court is of the opinion that on account of delay and latches, the petition deserves to be dismissed. The decisions relied upon by Mr.Trivedi, learned counsel are not applicable to the facts of the present case as the facts of those cases and facts of the present case are different.

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NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined

10. In the case of Prabhakar Vs. Joint Director Sericulture Department and another reported in (2015) 15 SCC 1, the Hon'ble Supreme Court has discussed with regard to the existence of the industrial dispute for this long period and that long period without any explanation cannot be considered by the Court. In the present case, the order of termination came to be passed in the year 2003 after full-fledged departmental inquiry and, thereafter, almost seven years, Reference was filed before the concerned Labour Court and, therefore, under such circumstances, this Court is of the opinion that from 2003, the relationships between the petitioner and the Corporation as employee and employer came to an end and there was no dispute existence till 2010 and, therefore, the Reference was rightly rejected by the Labour Court and no any illegality and infirmity found in the impugned award passed by the Labour Court. So far as the probability of punishment is concerned, Mr.Trivedi, learned counsel has relied upon the decision wherein the total period of absenteeism is much less than the present petitioner. In the present case, at the first instance, the petitioner remained absent for a period of 1289 days which was Page 18 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined subsequently regularized considering as leave without pay and after the order of reinstatement was passed by the Labour Court at the first instance in 1992 again he remained absent for more than 245 days till 1995 and again remained absent from 2001 to 2002 and till the final hearing of inquiry of removal came to be passed during the inquiry, he was not remained present, which fact was on record and the same was the subsequent charge. Considering the said aspect, this Court is of the opinion that once the Inquiry Officer has come to the conclusion that it is gross absenteeism and gross misconduct and habitual in remaining absent from his duty without any leave report or without prior sanction leave, such type of misconduct is not to be considered as disproportionate and the Labour Court has observed in connection with the said aspects in the first reference and in the second reference and, therefore, the present petition deserves to be dismissed. Considering the principal of proportionality. There is distinction in sanction leave and leave without pay. The present petitioner remained on leave / absent from the service on valid reason, but without any leave report or sanction leave, such fact cannot be considered as absenteeism but the person Page 19 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined remains absent without sanctioning leave the same to be considered as leave without pay and, therefore, treated as leave without pay is not the same as sanctioned or approved leave and the same is required to be considered differently as observed by the Hon'ble Supreme Court in para 12 of the case of Delhi Transport Corporation Limited Versus Sardar Singh reported in (2004) 7 SCC 574. The observation of para-12 of the said decision reads as under:-

11. It is worthwhile to refer to the decision of this Court in the case of Pradeepkumar Thakur Vs. State Bank of India and 1 other reported in 2024 (2) G.L.H. 149 wherein this Court has held and observed as under:-

10. It is also worthwhile to refer to the judgment of the Division Bench of this Court dated 06.01.2014 rendered in Letters Patent Appeal No.915 of 2013 wherein the Division Bench has observed in para-7 as under:-

(a) When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities;

(b) The Courts cannot assume the function of disciplinary / departmental authorities and to decide nature of function the quantum penalty is to be of punishment awarded, exclusively as within and this the jurisdiction of the competent authority;

(c) Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court;"

11. It is also worthwhile to refer to the decision of this Court in the case of C S. Amin Vs. Assistant General Manager SBI, Region III & 2 reported in 2016 LawSuit (Guj) 1916 and Bhikhubhai Kamabhai Dabhi Vs. Surat Municipal Page 21 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined Corporation and 2 reported in 2017 LawSuit (Guj) 9 where in this Court has decided similar issue as involved in the present petition.

12. In the case of C. S. Amin (supra), this Court has held and observed in paras - 29, 30 and 31 as under:-

(1) To judge the validity of any administrative order or statutory discretion normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test. (2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles.

(3)(a) As per Bugdaycay, Brind and Smith, as long as the European Human Rights Convention (Contention) is not incorporated into English Law, the English Courts merely Page 22 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined exercise a secondary judgement to find out if the decision maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgement on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.

(4)(a) The position in our country in administrative law, where no fundamental freedoms are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgement as to reasonableness will remain with the executive or administrative authority. The secondary judgement of the Court is to be based on Wednesbury the CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.

(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of 'proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms."

In Apparel Export Promotion Council Vs. A.K. Chopra - (1999) 1 SCC 759, the Supreme Court reiterated the otherwise well settled principles of law on the scope of judicial review of disciplinary action taken by the employer and laid down the following propositions:-

In Om Kumar Vs. Union of India - AIR 2000 SC 3689, the Supreme Court traced the history of the principle of proportionality, referred to the propositions culled out in Ganayutham 's case (supra), noticed the decision of the House of Lords in R. Vs. Chief Constable of Sussesc ex.p. International Trader's Ferry Ltd. (1999) 1 All ER 129, wherein the principles of Wednesbury and proportionality were almost equated and held that where the decision of Page 24 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined an administrative authority is attacked being arbitrary, the principle of secondary review will have to be kept in mind. Paragraphs 28, 29 66 to 71 of this judgement which theortises the law on the subject are reproduced below:

In Regional Manager U.P. SRTC V. Hoti Lal (2003) 3 SCC 605, the Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under:

30 The above noted decision of this Court gives a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasised that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has also been held that the punishment imposed by the competent authority cannot be modified/substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproportionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.

31. For determination of the question whether the punishment imposed by the disciplinary authority is grossly or shockingly disproportionate, the Court has to take into consideration all the relevant factors including the nature of charges proved, the past conduct of the employee, the punishment if any imposed earlier, the nature of duties assigned to the employee having due regard to their sensitiveness, performance norms if any laid down by the employer and above all the paramount requirement of maintaining discipline in the service."

13. In the case of Bhikhubhai Kamabhai Dabhi (supra), this Court has held and observed in paras - 17, 18 and 21 as under:-

15 In State of Andhra Pradesh and others v. Chitra Venkata Rao [(1975) 2 SCC 557], the principles have been further discussed at paragraphs 21 to 24, which read as follows:

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 Page 33 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined jurisdiction to issue a writ of certiorari should not do." 16 These principles have been succinctly summed up by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh [(1977) 2 SCC 491]. To quote the unparalled and inimitable expressions:

17 In all the subsequent decisions of this Court up to the latest in Chennai Water Supply and Sewarage Board v. T. T. Murali Babu (2014) 4 SCC 108 : (AIR 2014 SC 1141), these principles have been consistently followed adding practically nothing more or altering anything. 18 On Article I, the disciplinary authority, while imposing the punishment of compulsory retirement in the impugned order dated 28.02.2000, had arrived at the following findings:

19 The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India. 20 Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."

12. The respondent - Corporation has framed the General Conditions of Service Rules, which reads as under:-

PART-II CONDUCT

7. ACT CONSTITUTING MISCONDUCT:-

i. Wilful disobedience of an order or in subordination of the superior.

ii. Theft, fraud, forgery, embezzlement or dishonesty in connection with the Corporation's property of business. iii. Non-observance of safety precautions or the rules on the subject.

iv. Habitual late attendance and wilful or habitual absence from duty without leave or without sufficient cause. v. Habitual negligence or neglect of duty malingering or deliberate slowing down of work and sleeping on duty. vi. Taking of giving bribes or any illgollen or any illegal gratification.

vii. Unauthorized communication of official documents or information and disclosure to any unauthorised person of information relating to the Corporations. viii. Possessing of assets disproportionate to the known source of income.

ix. Habitual indebtedness of insolvency. x. Unauthorised use of Corporation's land or quarters. xi. Conviction in any of law for any criminal offence Page 37 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined involving moral turpitude.

xii. Being under the influence of liquor while on duty. xiii Improper behaviour towards other employees."

13. The above-mentioned decisions of this Court gives a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasised that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has been held that the punishment imposed by the competent authority cannot be modified / substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproportionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.

14. On perusal of the inquiry report of the inquiry officer and the order of the disciplinary authority, I am of the opinion that Page 38 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined the punishment of dismissal inflicted on the petitioner vis-a-vis the proven misconduct is not so disproportionate as would shock the conscience of this Court warranting interference.

15. Considering the totality of facts, I am of opinion that the authorities have rightly arrived at the conclusion that the petitioner was guilty of misconduct, which was sufficient to remove him from the service. This Court finds no reasons to interfere with the same either.

16. Considering overall facts and circumstances of the case and the decisions of this Court as well as Hon'ble Supreme Court, I am of the opinion that the appellate authority has recorded its findings after perusing and going through the materials on record and, therefore, both the authorities have not committed any error in passing the impugned orders and hence, the present petition is devoid of merits and the same deserves to be dismissed.

17. For the foregoing reasons, this petition fails and is hereby Page 39 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024 NEUTRAL CITATION C/SCA/20708/2018 JUDGMENT DATED: 18/09/2024 undefined dismissed. Rule is discharged. Interim relief, if any, shall stand vacated forthwith.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 40 of 40 Uploaded by V.R. PANCHAL(HC00171) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:46:59 IST 2024