B. Bhaskar Rao v. Navodaya Vidyalaya Samiti And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WP.CT/81/2023 B. Bhaskar Rao Vs.

Navodaya Vidyalaya Samiti and others Mr. V.D.Sivabalan ... for the appellant Mr. M.P. Kamaraj ... for the respondents January 11, 2024 [SR] Item No.9 The petitioner is aggrieved by an order dated February 27, 2023 passed by the Central Administrative Tribunal, Kolkata Bench, Circuit Bench at Port Blair. The petitioner is aggrieved, by the order on the following grounds:- (a) The learned Tribunal failed to take note of the fact that the petitioner was acquitted from a criminal case, after facing trial for alleged commission of offence under sections 498 A, 504, 506 of the Indian Penal Code read with section 4 of the Dowry Prohibition Act, 1961. Most of the charges were connected to such criminal case. (b) Such acquittal should have been a ground for reinstatement of the petitioner in his service, upon quashing the disciplinary proceedings.

(c) The charges, even if proved, should not lead to imposition of the punishment of compulsory retirement. The punishment was shockingly disproportionate. Mr.V.D.Sivabalan, learned advocate has taken this Bench through the articles of charges. According to Mr. Sivabalan, the charges were not so grave and imposition of a major penalty was disproportionate.

The charges, in a nutshell, were :-

(a) An illicit relationship with a co-worker, who resided within the same campus, to the knowledge of all, which resulted in family fueds.

(b) Leaving the station with the said co-worker for overnight trips.

(c) Drunkenness and verbal abuse in front of the girls hostel and the quarters, where other co-workers resided.

(d) Frequent visit to the quarters of the co-worker by depriving his wife and causing torture to her. Outrageous behavior in a drunken state.

(e) Abusing and using bad language in front of the other co-workers who in turn, complained to Principal of the school.

(f) Continuous quarrel and acrimony in the quarters with the wife, which disturbed the other person in the area, and (g) Imprisonment for a couple of days.

It also appears that the complaint of the wife with regard to the torture and other illicit activities of the husband, had reached the employer. The employer was concerned with the gravity of the complaints. Such activities also hampered the course of duties of the petitioner. The petitioner's illicit relationship with a co-worker and his continuous misdemeanor and violent bouts of anger and abuse were treated to be a misconduct, unbecoming of an employee of the residential school. The petitioner was the driver of the school bus, of a reputed residential school.

The school authorities'

conduced an enquiry in accordance with service rules and imposed punishment. The learned Tribunal has found that the

disciplinary proceeding was conducted strictly in terms of the said rules.

In the earlier round, the disciplinary proceeding culminated in the imposition of the major penalty of removal from service.

The said order was challenged in OA/351/168/2014. The learned Tribunal, upon considering the nature of misconduct, opined that punishment of removal from service was disproportionate to the charges and quashed order of punishment.

The Tribunal directed Disciplinary Authority and the Appellate Authority to revisit the issue, in so far as the quantum of punishment was concerned.

In compliance with the direction of the learned Tribunal, in the order dated April 11, 2015, the Disciplinary Authority re-examined the case of the petitioner with regard to the imposition of the punishment. A fresh order of punishment dated June 09, 2016 had been passed, recording the moral misconduct. The earlier decision of removal from service, was modified to compulsory retirement, with all consequential benefits. Further order that the said compulsory retirement from service would not be a disqualification for future employment of the petitioner elsewhere, was also passed. Against the said order of punishment of compulsory retirement, the petitioner preferred a statutory appeal. The Appellate Authority, upheld the order. The order of the Disciplinary Authority as also the Appellate Authority were challenged before learned Tribunal, by filing OA No.350/707/2019.

The learned Tribunal, after hearing the rival contentions of the parties, arrived at the conclusion that the challenge to the imposition of punishment upon the employee, by the employer, upon completion of a disciplinary proceeding, had very limited scope for judicial review. Beyond allegations of procedural lapses or non-compliance of the provisions of law, there could hardly be any ground for judicial review. Even with

regard to the quantum of punishment imposed, the courts should be slow to interfere with such decision of the employer, unless the punishment was glaringly disproportionate. The learned Tribunal considered the question of proportionality of the punishment and arrived at the conclusion that the employer had rightly passed the order of compulsory retirement with all consequential benefits, inter alia, stating that such order would not come in the way of the petitioner's future employment. The various decisions of the Hon'ble Apex Court on the subject, were discussed in detail. The learned Tribunal was of the view that the punishment commensurated with the nature of charges leveled and passed against the petitioner.

It is not in dispute that the petitioner was an employee of a prestigious residential school and the students, staff members and their family members were residing in the quarters, within the same campus. The continuous immoral actions of the petitioner, consumption of alcohol during the working hours in public places, use of abusive language and torture to the wife, amounted to misconduct as per the Central Civil Service (Conduct Rules), 1964. Thus, the Tribunal was of the view that the penalty of compulsory retirement with all consequential benefits had been rightly imposed. It is settled law that only the proportionality of the punishment can be tested by the High Court in judicial review and that too in very limited cases.

Here, the punishment does not shock the conscience of this Bench. The records reveal that the charges were proved and the evidence would not persuade us to pass any order, exonerating the petitioner. The relevant materials before the Disciplinary Authority were scanned and the learned Tribunal opined that there were enough materials for the authorities to proceed against the petitioner and pass necessary orders, imposing the punishment.

It is also true that the Tribunal had earlier set aside the order of removal from service, upon holding that the punishment was disproportionate to the charges. There are evidence to support the ultimate conclusion of the employer. The jurisdiction of this court cannot be equated to that of the appellate forum. We are not required to further scan and reappreciate the evidence. On the scope of judicial review and interference of the courts in the matter of disciplinary proceedings and on the test of proportionality, few decisions of the Hon'ble Apex Court are required to be referred to:

i) In the case of Om Kumar vs. Union of India reported in (2001) 2 SCC 386 , the Apex Court, after considering the Wednesbury principles and the doctrine of proportionality, observed that question of quantum of punishment is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or the other of the well-known principles, known as 'Wednesbury principles'.

In the Wednesbury case, (1948) 1 KB 223, it was observed that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. Lord Greene further said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.

ii) In the case of B.C. Chaturvedi vs. Union of India reported in (1995) 6 SCC 749 in paragraph 18, the Apex Court observed and held as under:

"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding

authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."

iii) In the case of Lucknow Kshetriya Gramin Bank (Now Allahabad, uttar Pradesh Gramin Bank. Vs. Rajendra Singh reported in (2013) 2 SCC 372 in paragraph 19, it is observed and held as under: "19. The principles discussed above can be summed up and summarised as follows:

19.1. 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.

19.2. The courts cannot assume the function of disciplinary/departmental authorities, to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority. 19.3. 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.

19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.

19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment

by the disciplinary authority even when the charges of misconduct were identical or the codelinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the codelinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable."

In Civil Appeal No. 2707 of 2022, the Hon Apex Court dealt with all the above relevant judgments and held as follows:

"11. .... The punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him. Therefore, the Division Bench of the High Court is absolutely justified in interfering with the judgment and order passed by the learned Single Judge, interfering with the order of punishment imposed by disciplinary authority removing the appellant from service. If the conduct on the part of the appellant entering the Mahila Barrack of the Battalion in the midnight is approved, in that case, it would lead to compromising the security of the occupants of the Mahila Barrack.

Therefore, disciplinary authority was absolutely justified in imposing the punishment/penalty of 'removal from service' by modifying the earlier punishment of dismissal. The same cannot be said to be disproportionate at all to the misconduct held to be proved against the appellant - delinquent."

We do not find from the records that the order passed by the Disciplinary Authority is either perverse or suffers from any procedural defect. The nature of the job of the petitioner and the peace and quality of life of the other residents residing in the campus, were compromised due to the unhealthy situation created by the obnoxious behavior of the petitioner. Public display of immoral conduct, drunkenness, use of abusive language, polluted the atmosphere in the campus of a residential school.

The disciplinary proceeding has been conducted in a manner which does not reflect that there were any legal infirmities. There are no allegations of violation of principles of natural justice, procedural irregularities and perversity. The punishment is not disproportionate. It does not shock the conscience of this Court. Only because the petitioner was acquitted from the criminal case, that would not be a ground to quash the disciplinary proceedings.

Thus, the application is dismissed.

Parties are directed to act on the server copy of this order.

( Shampa Sarkar, J. ) ( Tirthankar Ghosh, J. )