Full Text
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1933 OF 2009
Tukaram Sadashiv Mane ….. PETITIONER
:
The Chairman, The Mumbai Port Trust …. RESPONDENT
Mr. Mulanshu Vora i/b Mr. Avinash K. Jalisatgi, for Petitioner.
Mr. Dhruva Gandhi with Mr. Dheer Sampat i/b M.V. Kini & Co., for
Respondent.
JUDGMENT
1) Petitioner, Ex-Station Master employed by Mumbai Port Trust is aggrieved by Part-I and Part-II Awards rendered by the Presiding Officer, Central Government Industrial Tribunal-II, Mumbai in Reference No. (CGIT) 2/166 of 1999. The Tribunal has rejected the Reference made in relation to dismissal of the Petitioner from service.
2) Brief facts of the case are that Petitioner was appointed as Junior Trains Clerk on 19 August 1965 in Railway Department of the erstwhile Bombay Port Trust, which is now named as Mumbai Port Trust. The Port Trust has set up a railway line for facilitating movement of the 20 FEBRUARY 2026 consignments. Petitioner was promoted during his service career to the position of Station Master Grade-II. During 23 February 1990 to 30 August 1994, he was posted as Station Master, Grade-II at Grains Depot of the BPT-Railway. While working so, chargesheet dated 2 January 1995 was issued to the Petitioner proposing to hold departmental enquiry against him under the Employees (Conduct) Regulations, 1976 read with the BPT Employees (Classification, Control and Appeals) Regulations,
1976. It was alleged in the chargesheet that the Petitioner, while working as Station Master, Grade-II, had forwarded two commercial statements dated 27 June 1994 and 3 August 1994 showing occurrence of demurrage charges on wagons arrived and detained at BPT Grain Depot during June and July 1994. It was alleged that after going through the statement, it was found that approximately 42 wagons were received at 10.00 a.m. on 13 June 1994 at the Station BPT-G and placement of these wagons for delivery is shown as 16 wagons on 16 June 1994, 19 wagons on 25 June 1994 and 7 wagons on 9 July 1994. It is further alleged that 7 wagons were received at 7.30 hrs on 9 June 1994 and its placement is shown as 3 wagons on 17 June 1994 at 23.00 hrs, 11 wagons on 17 June 1994 and 5 wagons on 18 June 1994. It was therefore alleged that there was delay in placement of wagons ranging from 3 days to 27 days and that the placement of wagons was in piecemeal manner resulting in charging of less demurrage to the parties and excessive hire charges for detention of wagons on BPT Railways. It was alleged that such act caused loss of revenue to Trunk Railways in several lakhs. It was alleged that similar statements were forwarded on 5 September 1994 for the month of July 1994, in which similar undue delays were noticed in the placement of wagons. It was therefore alleged that the Petitioner willfully violated orders and instructions contained in Order No. 224 of Establishment Section of Railway Manager, Office, TR-10 of 1992 and instructions conveyed vide various office letters from time to time and thereby caused loss of revenue in several lakhs to the Respondent-Port Trust. Violation of Regulations 3(1), 3(1A)(i), 3(1A)(vi), 3(1A)(xii) and 3(1A)(xiii) of the BPT Employees (Conduct) Regulations, 1976 was accordingly alleged.
3) Petitioner replied to the chargesheet and denied the charges submitting that the placement of wagons in the depot used to be done by the Senior Trains Clerk under the direct supervision of Assistant Station Master and that he was responsible only for the overall supervision. The Disciplinary Authority appointed Enquiry Officer, who was a practicing Advocate, to conduct enquiry into the charges. During the course of enquiry, the Management examined several witnesses. Petitioner examined himself and one more witness in support of his defense. At the end of the enquiry, Enquiry Officer submitted report holding that charges leveled against the Petitioner were proved. Petitioner was served with copy of the report of the enquiry alongwith show cause notice as to why he should not be dismissed from the Port service. Petitioner replied to the show cause notice on 26 April 1996. The Disciplinary Authority proceeded to pass order dated 28 January 1997 dismissing the Petitioner from service. Petitioner preferred departmental appeal on 14 February
1997. He filed Writ Petition No. 162 of 1998 challenging the dismissal order. The petition was withdrawn with liberty to raise industrial dispute vide order dated 23 February 1998. Thereafter, the Appropriate Government made reference to CGIT in following terms: "Whether the action of the management of Mumbai Port Trust in dismissing the services of Shri Tukaram Sadashiv Mane is justified? If not, to what relief the workman is entitled to?
4) Petitioner filed the Statement of Claim, which was resisted by the Respondent by filing Written Statement. The Tribunal thereafter framed preliminary issues relating to status of the Petitioner as workman, fairness of enquiry and perversity in the findings of the Enquiry Officer. Petitioner examined himself on the preliminary issues. The CGIT rendered Part-I Award dated 7 April 2006 holding that Petitioner is a workman. However, the other two issues were answered against the Petitioner by holding that the enquiry held was fair and proper and that the findings of the Enquiry Officer are not perverse. Petitioner thereafter led evidence on the issue of legality of punishment. The Tribunal rendered Part-II Award dated 7 November 2007 answering the Reference in the negative holding that the punishment imposed on him does not warrant any interference. Aggrieved by Part-I and Part-II Awards dated 7 April 2006 and 7 November 2007, the Petitioner has filed the present Petition. By order dated 11 January 2010, the Petition came to be admitted. The Respondent has filed Affidavit-in-Reply opposing the Petition. The Petition is called out for final hearing.
5) Mr. Vora, the learned counsel appearing for the Petitioner submits that the Tribunal has erred in dismissing the Reference and in upholding the order of dismissal. That the Respondent-Trust could not prove cause of any loss on account of any of the acts of the Petitioner. That it was established during the course of enquiry that placement of wagons in the deport was done by Senior Trains Clerk under the direct supervision of Assistant Station Master and that Assistant Station Master used to record and maintain in the Station Diary the timing of placements of the wagons/rakes. Accordingly, Petitioner produced the relevant documents being the pages of Station Master Diary recording all details about arrivals and placement of wagons at the BPT’s Grain Depot. That the said entries clearly establish absence of any delay in placement of wagons. That Work Order No.312 lays down the duties of Assistant Station Master and Assistant Station Master is the person responsible for placement and removal of wagons from the goods shed, J.F. Sliding Stores Yard and for transfer of loads from Up yard to Down yard. Even then, the Assistant Station Master, V.S. Mehdhele was not issued a chargesheet. That there is specific admission of the Assistant Station Master about making entries about placement of wagons in the Assistant Station Master’s Diary. That Assistant Station Master further admitted that Station Trains Clerk enters the timings of placement of wagons in the Placement Register. That he was re-examined for the purpose of filling up the lacunae in the cross-examination and was permitted to give explanations to fill up the gaps.
6) Mr. Vora further submits that there is no allegation in the chargesheet about the Petitioner receiving any monetary consideration from any consignees. That there is no allegation of any ill motive on the part of the Petitioner. He therefore submits that imposition of punishment of dismissal is clearly unwarranted in the facts and circumstances of the present case.
7) The Petition is opposed by Mr. Gandhi, the learned counsel appearing for Respondent-Port Trust. He submits that the CGIT has already held the inquiry to be fair and proper. That these findings in the enquiry are rendered after grant of due opportunity of defence to the Petitioner. That principles of natural justice have been followed to the hilt during the course of the enquiry. He further submits that there is sufficient evidence on record to prove the misconduct alleged against the Petitioner in the chargesheet. That after analyzing the evidence, the Tribunal has arrived at the conclusion that the findings of the Enquiry Officer are not perverse. That this Court is not supposed to re-appreciate the evidence to arrive at a different conclusion than the one recorded by the Tribunal. He would accordingly submit that the impugned Awards do not warrant any interference in exercise of jurisdiction under Article 227 of the Constitution of India.
8) Mr. Gandhi would further submit that the acts of the Petitioner have clearly caused huge financial losses to the Respondent- Port Trust. That there was tripartite agreement between the Respondent-Port Trust, Central Railways and Western Railways in so far as delivery of wagons to the Grains Depot of the Trust was concerned. That the Respondent-Port Trust was bound to pay hiring charges to the Central Railways for wagons detained at its Grains Depot. At the same time, the Respondent-Port Trust was entitled to collect demurrage charges from the consignees from the date of unloading after expiry of permitted free time. That in the present case, delivery of wagons in case of few consignees was found to have been held up where demurrage bills for some of the consignees were outstanding. As a consequence of this action, the hiring charges payable to the Central Railways ballooned and simultaneously there was loss in terms of demurrage that could have been earned and this is why the chargesheet was issued to the Petitioner.
9) Mr. Gandhi would further submit that the charges against the Petitioner have been clearly established in the enquiry and that there was effectively admission on the part of the Petitioner. He invites the attention of the Court to Petitioner’s letter dated 27 June 1994 and the enclosed statement. That there is express admission on the part of the Petitioner having delayed uploading of wagons in that letter. That there was no reason for the Petitioner to have delayed unloading of wagons for those consignees, who had already defaulted on demurrage charges. That Petitioner has acknowledged the position of loss caused to the Port Trust due to his actions. He takes me through the relevant findings of the Enquiry Officer, which consists of depositions of the Petitioner in which there is an admission of revenue loss upto Rs.25,00,000/-. That there is deliberate delay in unloading of wagons and consequent loss to the Respondent were both categorically established. It was also established during the course of cross-examination that the conduct of the Petitioner was discriminatory where delivery of goods was not withheld in respect of the consignee M/s. Ramgopal who also had outstanding payments.
10) Mr. Gandhi would submit that there is no perversity in the Part-I Award, wherein enquiry is held to be fair and proper and the findings are held to be not perverse. That the Part-II Award rightly upholds the punishment of dismissal to be proportionate. This is particularly because the Petitioner himself has admitted cause of loss to the Railways. That the punishment is neither excessive nor disproportionate. He relies on judgment of the Apex Court in Coimbatore District Central Coop Bank Versus. Coimbatore District Central Co-operative Bank Employees Association and Another 1 in support of his contention that once the charges are held to be proved, it is not for the Courts and Tribunals to interfere in the quantum of punishment. Mr. Gandhi would pray for dismissal of the Petition.
11) Rival contentions of the parties now fall for my consideration.
12) The Petitioner was functioning as Station Master, Grade-II in the BPT Railways. It appears that BPT Railways is agent of Indian Railways. The Presenting Officer in his report has dealt with the arrangement between the Respondent-Port Trust and India Railways wherein it is pointed out that Indian Railways is referred as Trunk Railways to the BPT Railways. It appears that the tripartite agreement was executed between the Port Trust, Central Railways and Western Railways under which the Port Trust is required to pay hiring charges to the Trunk Railways for the wagons detained on its Railway system on daily basis. It appears that the wagons are hired by the consignees where the goods are transferred from the destination to the Port through railway line. There is a dedicated railway line owned and maintained by the Respondent-Port Trust which is connected to the Central Railway tracks for offering rail connectivity to the Port activities for ensuring faster and swifter movement of the transported goods. The wagons 2007 4 SCC 669 belonging to the Trunk Railways need to be freed as soon as the transported goods reach the Port Railway Sliding. Any delay caused in detention of wagons resulted in paying of higher charges by the Respondent-Port Trust to the Trunk Railways. It was therefore the responsibility of the Respondent-Port Trust to ensure that the Railway wagons are freed as early as possible so as to prevent payment of hiring charges on daily basis to the Trunk Railways. The wagons are therefore required to be made available for being unloaded immediately on their arrival. If the consignee delays unloading of the wagons, the Respondent-Port Trust collects demurrage charges from the consignee. This is how demurrage charges collected from the consignee sets off the liability of the Respondent-Port Trust to pay hiring charges to the Trunk Railways. This was the broad arrangement between the Respondent-Port Trust and Central/Western Railways.
13) The allegations against the Petitioner essentially was that though 42 wagons were received at 10.00 a.m. at BPTG Station on 13 June 1994, there was delay in placement of wagons for delivery to the consignee. 16 wagons were received on 16 June 1994, 19 wagons were received on 25 June 1994, and 7 wagons were received on 9 July1994. Similar delay was alleged in respect of 7 wagons received at 7.30 hrs on 9 June 1994. It was thus alleged that there was delay ranging between 3 days to 27 days in placement of wagons for delivery to the consignee resulting in payment of excessive hiring charges by BPT Railways to the Trunk Railways. Since the arrived wagons were placed for delivery with substantial delay, there was corresponding reduction in the levy of demurrage charges from the consignees. The consignees became liable to pay demurrage charges only after wagons were placed for taking delivery. Thus in the chargesheet it was broadly alleged that actions of the Petitioner caused delay in placement of wagons which resulted in payment of excessive hiring charges to the Trunk Railways while relieving the consignees of the obligation to pay demurrage charges.
14) The charges leveled against the Petitioner were found to be proved in the departmental enquiry resulting in imposition of punishment of dismissal from service. In the Part-I Award, the Tribunal has decided three issues of (i) status of the Petitioner as workman, (ii) fairness of enquiry and (iii) perversity in the findings of the Enquiry Officer.
15) While Petitioner’s status as workman is upheld by the Tribunal, it ruled against the Petitioner in respect of issues of fairness in the enquiry and perversity in the findings of the Enquiry Officer. Before me no serious attempt is made during the course of the arguments to point out any error in the findings recorded by the Tribunal on the aspect of fairness of enquiry. It otherwise appears that the Petitioner was provided full opportunity of defence in the enquiry. Petitioner has crossexamined the Management Witness. He has examined himself and one more witness in defence. Mere reexamination of the Assistant Station Master would not vitiate the inquiry. Therefore, no infirmity can be found in the findings recorded by the Tribunal about fairness in the enquiry.
16) So far as the issue of perversity in the findings of the Enquiry Officer are concerned, it is seen that the Petitioner did not really dispute the factual aspect of delay in placement of the wagons. He however sought to put the blame on the Assistant Station Master and the Senior Train Clerk by contending that they were responsible for placement of wagons arrived in the Depot. However, the Tribunal has held Petitioner responsible for supervisory failure in his capacity as the Station Master. It is held that the Petitioner was responsible for supervising the staff properly so as to ensure that no loss is caused to the Respondent-Port Trust. Also, the relevant instructions clearly places responsibility on the Station Master in ensuring that the rakes received at its Station are sorted out and the placement of wagons is done as expeditiously as possible. In the present case, the delay in placement of wagons in some of the instances is as high as 27 days. It therefore cannot be believed that the Station Master was oblivious of detention of wagons for such long time. Therefore Petitioner cannot be absolved of the responsibility if it is noticed that the wagons full of goods arrived at BPT Railway Siding and were not placed for delivery for as many as 27 days.
17) Some mileage is sought to be taken on account of Presenting Officer’s submission in his Report dated 17 October 1995 that ‘these two documents are extracts of ASM’s Diary and are definitely true that there was no delay in placements of wagons.’ This is sought to be explained by Mr. Gandhi that use of the word ‘no’ in the above quoted statement is typographical and an inadvertent error. In my view, it is not necessary to delve any deeper into this aspect as Petitioner has not disputed the dates of arrival of the wagons and the dates of their placements. His defence is only about Station Master not being responsible for placement of arrived wagons. He has attempted to blame the Assistant Station Master for delay in placement of wagons. However, as observed above, it is also the duty of the Station Master to ensure that rakes arrived at its station are sorted out and the placement of wagons is done as expeditiously as possible.
18) Petitioner has also taken an interesting defence in letter dated 3 August 1994 that ‘whenever demurrage bills are outstanding against the related parties the delivery of remaining wagons have been held up’. Thus, this statement contains an express admission on the part of the Petitioner that he did hold up the placement of the wagons in case of some of the consignees. It is difficult to appreciate the logic behind holding of placement of wagons in respect of the parties whose demurrage bills were outstanding. By doing so, the Petitioner was apparently causing losses to the Respondent-Port Trust, which was required to pay hiring charges to the Trunk Railways. Thus, for ensuring that consignees clear the outstanding demurrage bills, Petitioner apparently held up their wagons, but such an act resulted in cause of loss to the BPT, which was required to pay hiring charges to the Trunk Railways. Also, it came out during the evidence that the action of the Petitioner in holding wagons of consignees having outstanding demurrage bills was not uniform. He admitted during his cross examination that only 7 wagons of consignee, Prime Solvent Extractions Ltd were held up and that wagons of M/s. Ramgopal were not held up though there were outstanding demurrage bills against M/s. Ramgopal also.
19) In exercise of jurisdiction under Article 227 of the Constitution of India, this Court is not expected to reappreciate evidence. The evidence on record has been appreciated by the Enquiry Officer. There is implicit admission by the Petitioner about withholding of wagons of consignees who had outstanding demurrage bills. The evidence on record is again appreciated by the Tribunal. No element of perversity is pointed out to me in the findings recorded by the Enquiry Officer about proof of charges. In my view, there is sufficient evidence on record for holding Petitioner guilty of charges leveled against him. I am therefore of the view that there is no warrant for interference in the Part-I Award holding that the findings of the inquiry officer are not perverse.
20) Coming to the Part-II Award, the only issue that remained to be decided was about the aspect of proportionality of punishment. The Tribunal has held punishment of dismissal from service to be proportionate for the misconduct proved against the Petitioner. It appears that the Tribunal has taken into consideration the factum of cause of loss to the Respondent-Port Trust though it has stayed away from the controversy about the exact amount of loss suffered by the Port Trust. It appears that submissions were canvassed before the Tribunal on behalf of the Petitioner that the loss suffered could be only of Rs.25,00,000/- and not Rs.40,00,000/- and that the loss may be caused to Trunk Railways and not to BPT Railways. In my view, the quantum of loss may not be a relevant factor for deciding the issue of proportionality of punishment and this aspect has rightly been ignored by the Tribunal.
21) However, the manner in which the issue of proportionality is considered and decided by the Tribunal, the same does not appeal to this Court. After dealing with the issue of quantum of loss, the Tribunal has recorded following evidence while holding the punishment to be proportionate:-
12. So if we consider this coupled with the charges proved against the second party workman, in my considered view, punishment awarded of dismissal cannot be observed inadequate or excessive one. Learned Advocate for the second party tried to place reliance on Regulations of BPT Employees and tried to point out that there are two types of penalties one is of "minor" penalties and other is of "major" penalties. Major penalty of dismissal is taken against second party workman. According to second party's advocate, there are lesser types of major penalties also like reduction to a lower stage in a time-scale of pay for a specified period, or for forever. There is also lesser type of punishment of compulsory retirement and reducing the employee's seniority when charge of such type is proved and punishment of compulsory retirement vis-à-vis dismissal from service is also regulated in the rules. In my considered view discretion used by first party in penalizing the employee of this type cannot be challenged without any reason. Besides it place reliance on citation published in 2002 (3) LLN page 1009 where it is observed that, in a criminal case if employee is acquitted definitely, it will help employee in making out case of lesser punishment but in my considered view facts of that case since are different from the facts of this case, ratio led by Karnataka High Court cannot be made applicable here. Another referred citation published in 2006 III LLJ 133 where Hon'ble Bombay High Court observed that, in case of theft case, entire responsibility cannot be put on workman. In that case lesser punishment can be awarded. But that was a case of theft which cannot be compared with the case of negligence. So I am of the opinion that, even ratio of Bombay High Court cannot be applied here to show lenience to this workman.
13. Against that learned advocate for first party referred citation published in 1996 | CLR page 389 where it is observed that, judicial review is not an appeal from a decision but review of the manner in which decision is made. It was tried to distinguish what is power of judicial review and meaning of appeal. By this learned Advocate for the first party wants to point out that, Tribunal cannot sit as a appellant court on the decision given by the management on the punishment given by it in case of proved misconduct. In the instance case charge was proved and when charge is proved first party has liberty to exercise the option of giving punishment and that exactly is done by management. I also agree with this view since charge was proved which was of very serious nature, management excised option of awarding punishment which has logic behind it. Citation referred published in 2002 (III) CLR page 293 reveals, what powers are given to Tribunal under Section 11 A of Industrial Disputes Act. Another referred citation published in 2003 (98) FLR page 1170 also of the same point regarding power of Tribunal under Section 11 A of the Industrial Disputes Act. Citation referred published in 1997 I LLJ page 186 revels that punishment awarded by management was not shockingly disproportionate, which is not required by the Tribunal to interfere in it. Citation published in 2005 | CLR 959 projects on jurisdiction of Tribunal Under Section 11-A of the Industrial Disputes Act.
14. So if we consider all these coupled with case made out by both, I conclude that, punishment awarded to second party workman Mane does not require to interfere since I find it is proportionate to the charges leveled and proved. In the circumstances, second party is not entitled to get any relief.
22) If the charges proved against the Petitioner are taken into consideration, it is seen that there is no allegation against him that he deliberately caused delay for the purpose of assisting any particular consignee. There is no allegation of favourtism or malafide intention on the part of the Petitioner. That it is neither alleged, much less proved, that Petitioner received any monetary benefit for himself by causing delay in placement of wagons. This would be one of the vital considerations for determining the issue of proportionality. Petitioner’s actions may have resulted in loss to the Respondent-Port Trust/Trunk Railways. However, it is not the case of the Respondent-Port Trust that Petitioner deliberately delayed placement of wagons because he received any gratification for doing so from any consignee. There are also certain mitigating factors in favour of the Petitioner. Petitioner was not the only person responsible for placement of the wagons. It has come in evidence that the Senior Train Clerk as well as Assistant Station Master were also responsible for timely placement of wagons. A Station Master is responsible for overall operations of railways at the station. Of course, he is duty bound to supervise all activities occurring at his station including the activities of persons functioning under him. However, there is nothing on record to indicate that the Senior Train Clerk or Assistant Station Master were chargesheeted for delay in placement of wagons. When supervisory failure is alleged, it is also necessary that the personnel, who actually commit the main misconduct are also dealt with. It is discriminatory to selectively punish the supervisor while not conducting any enquiry against the persons who actually fail to perform their duties. Secondly, Petitioner has also taken a defence that the wagons are held up with a view to ensure that consignees clear the outstanding demurrage charges. Whether this action of the Petitioner was right or not is an altogether different aspect. May be this course of action was not implemented in a uniform manner against all consignees who had outstanding demurrage charges. May be the Petitioner did not realise that his actions of forcing the consignees to clear the outstanding demurrage charges by withholding placement of wagons was actually causing losses to BPT Railways in the form of hiring charges payable to the Trunk Railways. Though the outcome of his actions is wrong, his intentions were not. In my view therefore malafide intention on the part of the Petitioner in causing delay in placement of wagons is neither alleged nor proved and this is a major mitigating factor in favour of the Petitioner.
23) Petitioner was appointed in Respondent-Port Trust On 19 August 1965 and by the time he was dismissed from service on 28 January 1997, he had rendered 32 long years of service. There is nothing on record to indicate that Petitioner had committed any misconduct during his past service. Imposition of punishment of dismissal from service has resulted in denial of even retirement benefits to the Petitioner. It appears that in the criminal prosecution the Petitioner has been discharged, without even subjecting him to trial.
24) Ordinarily, the Courts and Tribunals cannot interfere in the quantum of punishment imposed on the delinquent employee. It is well settled position that selection of punishment is in the exclusive domain of the employer. The Courts and Tribunals cannot decide as to which punishment would best serve the interest of the employer considering the nature of misconduct committed by the employee. However, there is an exception to this well recognized rule. In cases where the punishment is shockingly disproportionate and where the punishment shocks the conscience of the Court, it can interfere in the punishment. Reference in this regard can be made to the Apex Court judgment in B.C. Chaturvedi vs. Union of India and Others[2] wherein it was observed as under:
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being factfinding 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 appro- priately 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.” (emphasis added)
25) In Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) and Another vs. Rajendra Singh[3] it is held by the Apex Court 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 and 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 codelinquent 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 chargesheet in the two cases. If the codelinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.” (emphasis added)
26) Mr. Gandhi has relied on judgment of the Apex Court in Coimbatore District Central Cooperative Bank (supra), in which it has held in para-29, 30, 31 and 32 as under:-
29. From the above decisions, it is clear that our legal system also has accepted the doctrine of proportionality. The question, however, is whether in the facts and circumstances of the present case, the High Court was justified in invoking and applying the doctrine of proportionality. In our judgment, the answer must be in the negative. Normally, when disciplinary proceedings have been initiated and finding of fact has been recorded in such inquiry, it cannot be interfered with unless such finding is based on "no evidence" or is perverse, or is such that no reasonable man in the circumstances of the case would have reached such finding. In the present case, four charges had been levelled against the workmen. An inquiry was instituted and findings recorded that all the four charges were proved. The Labour Court considered the grievances of the workmen, negatived all the contentions raised by them, held the inquiry to be in consonance with principles of natural justice and findings supported by evidence. Keeping in view the charges proved, the Labour Court, in our opinion, rightly held that the punishment imposed on workmen could not be said to be harsh so as to interfere with it.
30. In our opinion, therefore, the High Court was not right in exercising power of judicial review under Articles 226/227 of the Constitution and virtually substituting its own judgment for the judgment of the Management and/or of the Labour Court. To us, the learned counsel for the appellant Bank is also right in submitting that apart from Charges 1 and 2, Charges 3 and 4 were "extremely serious" in nature and could not have been underestimated or underrated by the High Court.
31. In this connection, it is profitable to refer to a decision of this Court in Bengal Bhatdee Coal Co. v. Ram Probesh Singh 5. In that case, the respondents were employees of the appellant. A strike was going on in the concern of the appellant. The respondents obstructed loyal and willing trammers from working in the colliery and insisted those workmen to join them in the obstruction. A charge-sheet was served on the respondents and disciplinary inquiry was instituted. They were found guilty and were dismissed from service. Since another reference was pending, approval of the Industrial Tribunal was sought which was granted. In a reference, however, the Industrial Tribunal held that penalty of dismissal was uncalled for and amounted to victimisation. The Management approached this Court.
32. Allowing the appeal, setting aside the order of the Tribunal and upholding the order of dismissal, this Court stated: (AIR p. 488, para 6)
27) In case before the Apex Court in Coimbatore District Central Cooperative Bank, the concerned workers had proceeded on strike. While some of the workers signed the settlement and resumed the work, 53 employees continued their strike badly affecting the activities of the bank. The workers on strike also prevented other employees from resuming duties and threatened them with dire consequences. After conducting Departmental inquiry, punishment of stoppage of increment for 1-4 Years and non-payment of salary during the period of strike was imposed. The Labour Court upheld the penalty. The High Court, though agreed with the findings of the Labour Court about proof of the charges, but found the punishment of stoppage of 1-4 Annual increments with cumulative effect to be harsh. The management was directed to pay arrears in respect of stoppage of increments with interest at the rate of 12% per annum. It is in the light of the above facts that the Apex Court held that the High Court was not right in exercising power of judicial review under articles 226 and 227 and in substituting its own judgment for the judgment of the management.
28) In my view the ratio of the judgment in Coimbatore District Central Cooperative Bank would have no application to the facts of the present case. In case before the Apex Court, the High Court had interfered in punishment which was otherwise insignificant (stoppage of increments). In the present case however, Petitioner has been dismissed from service resulting in denial of any benefits in respect of his 32 year of his service. Some justification is provided by the Petitioner for delay in placement of the wagons that there is no malafide intention alleged in respect of his actions. In my view therefore the punishment of dismissal from service shocks the conscience of the Court.
29) Mr. Gandhi has placed on record copy of Bombay Port Trust Employees (Classification, Control and Appeal) Regulations, 1976. Perusal of Regulation 8 would indicate that major penalties are reduction to lower stage in time-scale of pay, reduction in lower time-scale of pay/grade/post, compulsory retirement, removal from service and dismissal from service.
30) Petitioner is now almost 80 years old and has already suffered a lot. The sufferings undergone by the Petitioner for the past 29 long years would also constitute sufficient punishment for him for the misconduct that he has committed.
31) Ordinarily when the Court finds punishment to be shockingly disproportionate, the correct course of action is to remand the proceedings to the employer to impose substitute punishment, which would be commensurate to the misconduct proved. In the present case however, Petitioner has long since crossed the age of superannuation and now is an octogenarian. Considering this position in my view it would be appropriate for this Court to impose the substituted punishment rather than remanding the proceedings to the employer. Considering the facts and circumstances of the case I am of the view that imposition of punishment of compulsory retirement would meet the ends of justice.
32) I accordingly proceed to pass the following order:
(i) Part-I Award dated 7 April 2006 passed by the CGIT is upheld.
(ii) Part-II Award dated 7 November 2007 passed by the CGIT is set aside.
(iii) The punishment of dismissal from service imposed vide order dated 28 January 1997 shall stand substituted with the punishment of compulsory retirement.
(iv) Petitioner is held entitled for all retirement benefits on account of imposition of punishment of compulsory retirement w.e.f. 28 January 1997.
(v) Arrears of retirement benefits w.e.f. 28 January 1997 shall be paid to the Petitioner by the Respondent within the outer limit of 3 months.
33) With the above directions, the Petition is partly allowed. Rule is made partly absolute. There shall be no order as to costs. [SANDEEP V. MARNE, J.]