High Court of Punjab and HaryanaCWP/10051/2012allowed

Rajesh Kumar Gupta v. Presiding Officer, Industrial Tribunal-Cum-Court & ANR

2016-04-29Mr Justice Jaswant Singh16 pages

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> ?/7 % " $ $ "It has been reported that Shri R.K.

Gupta, Supervisor, E. Code No.77/5523 has been absenting himself from duty since 9 without prior permission of the Competent Authority. It has also been reported that he is in habit of absenting himself from duty without any prior approval/sanction of leave. The act of commission/omission on his part constitute gross and serious misconduct."

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"If a workman remains absent without leave, for more than 8 days or for more than 8 days beyond the period of leave originally granted or subsequently extended, he should be deemed to have been voluntarily abandoned his employment and his services shall be treated as having been terminated automatically and his name shall be struck off from the services of the Company without any reference to him unless he gives explanation to the satisfaction of the Management of his unauthorized absence."

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4-% 6(A2'); )< ,$'" 5 $4 )).$+4 )0 ?* )0 ." $+40 $ ))4+ 0 +$ "we may adjust his leave at his credit on 9.11.1998 and the remaining leave can be EOL" ( .

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7 $ "The basic question of law which arises in these matters is whether the report of the enquiry officer/authority who/which is appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee, is required to be furnished to the employee to enable him to make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, if any, to be awarded to him. This question in turn gives rise to the following incidental questions: (i)Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it?

(ii)Whether the report of the enquiry officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank?

(iii)Whether the obligation to furnish the

report is only when the employee asks for the same or whether it exists even otherwise?

(iv)Whether the law laid down in Mohd.

Ramzan Khan case will apply to all establishments - Government and non Government, public and private sector undertakings?

(v)What is the effect of the non furnishing of the report, on the order of punishment and what relief should be granted to the employee in such cases?

(vi)From what date the law requiring furnishing of the report, should come into operation?

(vii)Since the decision in Mohd. Ramzan Khan case has made the law laid down there prospective in operation, i.e.

applicable to the orders of punishment passed after November 20, 1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to November 20, 1990?"

0# Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A

denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of breach of the principles of natural justice. 1 Hence the incidental questions raised above may be answered as follows:

[i] Since the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject."

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6!7%.$ )*% 89: ;<9 ? $%7 $ "8EE.It is suggested that the past record of a government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some

extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the government servant shall be given a reasonable opportunity to know that fact and meet the same." 42252$ #%! %&%#.*2% *6!% 2!2.-0<;4=5 0>0 2 ( $"

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)$ )). "#5 The Labour Court at the first instance has erroneously failed to exercise its jurisdiction by not reappreciating the evidence on record after holding that the preliminary issue regarding the domestic enquiry conducted by the appellant Company is legal and valid. The said erroneous finding was challenged by the respondent workman in the appellate court after two remand orders were passed by the Industrial Court. Ultimately, the Labour Court has exercised its jurisdiction

and on reappreciation of the facts and the evidence on record and in accordance with the decision of this Court in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd.8, it has found fault with the findings of the enquiry officer which were endorsed by the disciplinary authority which has erroneously held that the workman was guilty of the misconduct. The Labour Court after the two remand orders has rightly come to the conclusion on reappreciation of the evidence on record and held that the charge levelled against the respondent is partially proved and even then the order of dismissal imposed upon him by the disciplinary authority, has been done without notifying the respondent workman about his past service record, as required under Clauses 12(3)(b) and (c) of the SSO, which aspect is rightly noticed and answered by the Labour Court at Para 20 of its award dated 29 2007. Thus, the order of dismissal of the workman from the service is disproportionate and severe to the gravity of the misconduct."

# The same has been laid down by this Court in Raghubir Singh v. Haryana Roadways, wherein this Court has held thus: (SCC pp. 321 23, paras 39 40) "39. The abovesaid 'doctrine of proportionality' should be applied to the fact situation as we are of the firm view that the order of termination, even if we accept the same is justified, it is disproportionate to the gravity of misconduct. In this regard, it would be appropriate for us to refer to certain paragraphs from the decision of this Court in Om Kumar v. Union of India9, wherein it was held as under: (SCC pp. 410 11, paras 66 68) '66. It is clear from the above discussion that in India where administrative action is challenged under Article 14

as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the constitutional courts as primary reviewing courts to consider the correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Hence the court deals with the merits of the balancing action of the administrator and is, in essence, applying "proportionality" and is a primary reviewing authority.

67. But where an administrative action is challenged as "arbitrary" under Article 14 on the basis of Royappa10 (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury11 test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. [In G.B. Mahajan v. Jalgaon Municipal Council12 (SCC at p. 111).] Venkatachaliah, J.

(as he then was) pointed out that "reasonableness" of the administrator under Article 14 in the context of administrative law has to be judged from the standpoint of Wednesbury11 rules. In Tata Cellular v. Union of India13 (SCC at pp. 679 80), Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India14 (SCC at p. 691), Supreme Court Employees' Welfare Assn. v.

Union of India15 (SCC at p. 241) and U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd.16 while judging whether the administrative action is "arbitrary" under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury11 review always.

68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as "arbitrary" under Article 14, the principle of secondary review based on Wednesbury11 principles applies.'

40. Additionally, the proportionality and punishment in service law has been discussed by this Court in Om Kumar case as follows: (SCC pp. 411 12, paras 69 70) '69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14.

70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India17, this Court referred to "proportionality" in the quantum of punishment but the Court observed that the punishment was "shockingly" disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India18, this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Ganayutham19.'"

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